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REPORTS
OF
DECISIONS IN PROBATE
BY
JAMES V. COFFEY,
JUDGE OF THE SUPERIOR COURT,
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 FIVE.
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law Publishers and Law Booksellers.
1910.
y/S
Copyright, 1910,
BY
JEREMIAH VINCENT COFFEY.
San Francisco:
Tiik Fn.MK.it Brothers Ki.kctrotype Company,
Typoobaphxrs and Stereotypers.
TABLE OF CASES.
Adamson, Estate of 397
Barrett, Estate of 376
Brown, Estate of 428
Burton, In re 235
Caffrey, Estate of 431, 439
Callaghan, Estate of 429, 430
Clancy, Estate of 430
Clute, Estate of 431
Cochrane v. McDonald 235
Collins, Estate of 291
Cornell, Estate of 431
Dale, In re 226
Dama, Estate of 24
Emeric, Estate of 286
Fallon, Estate of 426
Flaherty, Estate of 426
Fretz, Estate of 432
Goff, Estate of 432
Goodale, Estate of 28S
Greenwood, Estate of 425
Griffin, In re 230
Heatley, Estate of 432, 433
Hickey, Estate of.' 433
Hite, Estate of 402
Holmes, Estate of 394
Lannon, Estate of 416
Le Clerc, Estate of 297
Lynch, Estate of 279
Maynard, Estate of 269
McDonald, Cochrane v 235
Moraghan, Estate of 440
More, Estate of 434
Moxley, Estate of 434
Noah, Estate of 277
(iii)
^^iCi^ O d
iv Table of Cases.
Ortiz, Estate of 271
Patrick, Estate of 435
Plumel, Estate of 243
Reddy, Estate of 405
Redfield, Estate of 435
Reichle, In re 219
Runge, Guardianship of 439
Snook, Estate of 245
Spreckels, Estate of 311
Stepney, Estate of 438
Strybing, Estate of 438
Swenson, Estate of 43G
Sykes, Estate of 435
Tillraann, Estate of 387
Tracy, Estate of 430
Turner, Estate of 424
Williams, Estate of 1, 437
Wolters, Estate of 42S
Zeile, Estate of 292, 437
TABLE OF CASES CITED.
Abbott v. Abbott, 41 Mich. 540 216
A. G. v. Heelis, 2 Sim. & S. 67 287
American Asylum v. Phoenix Bank, 4 Conn. 172 287
Andrews v. Rice, 53 Conn. 566 375
Anthony v. Dunlap, 8 Cal. 26 237
Atwood, Estate of, 127 Cal. 427 399
Baer, In re, 147 N. Y. 353 3S6
Bank v. Railroad Co., 28 Vt. 470 237
Beck v. McGillis, 9 Barb. 35 393
Bergdoll's Estate, In re, 18 Pa. Co. Ct. Rep. 665 375
Boland, Estate of, 43 Cal. 642 290, 291
Borland v. Walrath, 33 Iowa, 131 113
Broderick's Will, 21 Wall. 503 241
Brooke v. Tichborne, 2 Eng. L. & Eq. 374, 5 Exch. 929 110
Brooks v. Delaplaine, 1 Md. Ch. De£ . 272 237
Brown v. Wallace, 4 Gill & J. (Md.) 479 237
Burton, In re, 93 Cal. 464 23S
Cahlan v. Bank of Lassen County (Cal. App.), 106 Pac. 765 330
Campbell v. Campbell, 152 Cal. 207 323
Cardinal v. Eau Claire Lumber Co., 75 Wis. 427 237
Carpenter v. Cook, 132 Cal. 625 362
Carver v. Braintree Mfg. Co., 2 Story, 432 284
Cavarly, Estate of, 119 Cal. 408 345
Caw v. Robertson, 5 N. Y. 125 29 i
Cbipman v. Hibbard, 8 Cal. 268-271 237
Clark t. Cammann, 160 N. Y. 325 374
Clements v. Stanton, 47 Cal. 60 289
Cochrane v. Schell, 140 N. Y. 534 368
Coggeshall v. Pelton, 7 Johns. Ch. 292 287
Connecticut Trust etc. Co. v. Chase, 75 Conn. 6S3 393
Constable v. Seibel, 1 Hagg. Ecc. Rep. 56 Ill
Cooke v. Piatt, 98 N. Y. 35 359, 361
Coolidge, Matter of, 85 App. Div. 304 352
Coon v. Seymour, 71 Wis. 340 237
Cornwell v. Woolley, 1 Abb. Ct. of App. Dec. 441 294
Cowan v. Beall, 1 McAll. 221 113
Cozzens v. Jamison, 12 Mo. App. 452 393
Crall v. Poso Irr. Dist., 87 Cal. 140 242
Crew v. Pratt, 119 Cal. 139 372
(v)
vi Table of Cases Cited.
Crittenden, Estate of, Myr. Pro. Rep. 54, 55 9
Cronin, Estate of, Myr. Pro. Rep. 252 272
Crowley v. Davis, 37 Cal. 268 237
Dama. Estate of, 5 Cof. Pro. Dec. 24 292
Danneker, Guardianship of, 67 Cal. 643 237
De Kay v. Irving, 5 Denio, 646 359, 360
Delafield v. Barlow, 107 N. Y. 535 350
Delafield v. Shipman, 103 N. Y. 463 374
Dixon, Estate of, 143 Cal. 511 345, 355
Dodge v. Northrup, 85 Mich. 243 237
Dougherty v. Bartlett, 100 Cal. 496 238
Dunphy, Estate of, 147 Cal. 95 331, 341, 343, 345, 346, 348
Edelman v. Yeakel, 27 Pa. 27 338
Elwyn's Appeal, 67 Pa. 367 383
Fahnestock v. Fahnestock, 152 Pa. 56 322
Fair, Estate of, 132 Cal. 526, 557 328, 330, 331, 332,
339, 340, 342, 345, 346, 348, 353, 355, 356, 357, 358, 359, 360, 362
Fair, Estate of, 136 Cal. 81 363
Fargo v. Squiers, 154 N. Y. 250 ., 371
Fay, Estate of, 1 Cof. Pro. Dec. 428 292
Fenske v. Kluender, 61 Wis. 602 238
Finnerty v. Pennie, 100 Cal. 404 237
Fischer v. Butz, 224 111. 379 364, 3 75
Flaherty v. Kelly, 51 Cal. 145 237
Frost, In re, L. R. 5 Ch. App. 699 280
Garratt, Estate of, 3 Cof. Pro. Dec. 394, 415 393
Gharky, Estate of, 57 Cal. 280 9
Gilbert v. Renner, 95 Mo. 151 237
Gilman v. Reddington, 24 N. Y. 15 357, 359
1 tree v. Thompson, 79 Cal. 613 369
Gorbam v. Toomey, 9 Cal. 77 237
Granniss, Estate of, 142 Cal. 1 324
Greene v. Greene, 125 N. Y. 506 352
GrifTin v. Birkh.ad, 84 Va. 612 237
Griffith, In re, 84 Cal. 107 238
Gurnee ▼. Maloney, 38 Cal. 87 238
Halaey'a Appeal, 120 Pa. 209 2S.°>
ibleton'a Appeal, 102 Pa. no 281,
Hardwiek, Estate of, 59 I al. 292 398
Harris, Estate of, 3 Cof. Pro. Dec. 1 270
Hawley v. James, 10 Wend. 62 372
llawley v. James, 16 Wend. 147 3.J7, 360
Table of Cases Cited. vii
Haycock, Ex parte, 5 Russ. Ch. 154 281
Haynes v. Haynes, 33 Ohio St. 598 216
Heberle, Estate of, 153 Cal. 275 344, 347
Heeney, In re, 2 Barb. Ch. 326 280
Henderson v. Henderson, 113 N. Y. 1 361
Hendy, Estate of, 118 Cal. 656 372
Heywood, Estate of, 148 Cal. 184 342
Hinckley, Estate of, 58 Cal. 457 367, 369
Hobson v. Hale, 95 N. Y. 613 327, 375
Hof sas v. Cummings, 141 Cal. 527 356
Hoke v. Herman, 21 Pa. 301 393
Home Ins. Co. v. Howell, 24 N. J. Eq. 239 237
Hood v. Hayden, 82 Va. 588 393
Hope t. Jones, 24 Cal. 93 238
Hotchkiss v. Elting, 36 Barb. 44 357
Houghton v. Trumbo, 103 Cal. 239 239
How t. Waldron, 98 Mass. 281 341
Howse v. Chapman, 4 Ves. 542 287
Humphreys v. Humphreys, 2 Cox, 184 393
Humphreys, Will of, Tuck. Sur. Rep. (N. Y.) 142 9
Hurt v. Long, 90 Tenn. 445 238
Janes ▼. Throckmorton, 57 Cal. 382 323
Jenkins v. Simms, 45 Md. 532 237
Johnson v. Preston, 226 111. 447 373
Jones v. Habersham, 107 U. S. 174 287
Judson v. Porter, 51 Cal. 562 237
Keating v. Smith, 154 Cal. 186 355
Kimpton v. Bronson, 45 Barb. 625 284
Lambert v. Smith, 9 Or. 193 338
Langdon v. Astor, 3 Duer. 477 393
Leadville v. Coronado Min. Co., 29 Colo. 34 337
Leggett v. Bank of Sing Sing, 24 N. Y. 290 284
Lembeck v. Kelly, 63 N. Y. Eq. 408 336
Luper v. Werts, 19 Or. 122 8
Manice v. Manice, 1 Lans. (N. Y.) 348, 380 328
Manice v. Manice, 43 N. Y. 303 326, 327, 359, 360
Marti, Estate of, 132 Cal. 672 372
Mason v. Piggott, 11 111. 88 237
McCurdy v. Otto, 140 Cal. 54 328
Miles v. Miles, 46 N. H. 261 290
Mills v. Husson, 140 N. Y. 105 368
Moore, Estate of, 57 Cal. 442 290, 291
Moore, In re, 96 Cal. 522 238
Morrice V. Aylmer, L. R. 10 Ch. App. 148 389
viii Table op Cases Cited.
Motz, Estate of, 136 Cal. 558 270
Murphy v. Hagerman, Wright (Ohio), 293 Ill
Naglee, Estate of, 52 Pa. 160 364
Nellis v. Rickard, 133 Cal. 617 330, 352
Newell v. People, 7 N. Y. 124 284
New Haven Sawmill Co. v. Fowler, 28 Conn. 108 284
Nougue t. Clapp, 101 U. S. 551 237
Oakes v. Oakes, 9 Hare, B66 389, 390
Ober v. Schenck, 23 Utah, 619 338
Orient Ins. Co. v. Sloane, 70 Wis. 611 237
Ould t. Washington Hospital, 95 U. S. 303 287
Owen, Matter of, 48 App. Div. 507 294, 295
Paget v. Melcher, 156 N. Y. 399 371
Palms v. Palms, 68 Mich. 365 364
Palomares, Estate of, 63 Cal. 402 399
Parker v. Marchant, 1 Younge & C. 290-307 391
Peabody, Estate of, 154 Cal. 173 332, 333, 334
Peek v. Jenness, 7 How. 624 237
Peirce, In re, 25 R. I. 34 389
Pennie v. Roach, 94 Cal. 521 237
Phelan v. Smith, 8 Cal. 521 237
Pichoir, Estate of, 139 Cal. 682 359, 361, 362
Pickett, Estate of, 1 Cof. Pro. Dec. 93 290, 291
Pico v. Cohn, 91 Cal. 129 242
Pilkington's Trust, In re, 13 L. T., N. S., 35 391
Platto v. Duester, 22 Wis. 460 237
Plumel, Estate of, 151 Cal. 78 245
Prcndergast v. Walsh, 58 N. J. Eq. 149 390
Randall v. Howard, 2 Black. 585 237
Reid v. State, 20 Ga. 681 110
Revalk v. Kraemer, 8 Cal. 66 237
Richards v. Humphreys, 15 Pick. (Mass.) 133 393
Rickett v. Johnson 8 Cal. 34 237
Ross, Estate of, 140 Cal. 289 349
Ross, Estate of, 3 Cof. Pro. Dec. 500, 511 300
»
Saddlcniirn r. Stockton S. etc. Soc, 144 Cal. 653 399
ttanford, Estate of, 136 Cal. 97 345, 359
Savage v. Burnlisim, 17 N. Y. 566 354, 355, 364
Sehettler v. Smith, 41 N. Y. 3ii8 368
Scholia v. Scholle, 113 N. Y. 272 352
Sharon v. Sharon, 84 Cal. 430 238
Sharon v. Teny, 36 Ped. :s:i7, 13 Saw. 387 237
Shipman v. Rollins, 98 N. Y. 323 373
Table of Cases Cited. ix
Slater v. Slater (1907), 1 Ch. 665 390
Slater v. Slater (1906), 2 Ch. 480 390
Smith v. Crotty, 112 Ga. 905 295, 296
Soher, Estate of, 78 Cal. 477 292
Spencer v. Spencer, 11 Paige Ch. 160 283
Stanley v. Potter, 2 Cox, 180 393
State v. McGlynn, 20 Cal. 233 241
Stearns v. Stearns, 16 Mass. 170 237
Steele, Estate of, 124 Cal. 539 355, 367
Story v. Palmer, 46 N. J. Eq. 1 364, 375
Strong v. Brewer, 17 Ala. 706 Ill
Taylor v. Taintor, 16 Wall. 370 237
Taylor Will Case; 10 Abb. Pr., N. S., 300 Ill
Thompson, Estate of, 1 N. Y. Supp. 215 336
Thompson v. Hart, 58 App. Div. 439. > 350
Tobelman v. Hildebrandt, 72 Cal. 313 238
Toland v. Toland, 123 Cal. 144 368
Tome v. Parkersburg R. Co., 39 Md. 36 Ill
Tompkins, Estate of, 12 Cal. 114 398
Townshend v. Frommer, 125 N. Y. 446 366
Turner v. Hand, 3 Wall. Jr. 115 113
Tyler v. Mayre, 95 Cal. 160 330
Uhlfelder v. Levy, 9 Cal. 608-614 237
Underwood v. Curtis, 127 N. Y. 523 373
United States v. Chamberlain, 12 Blatchf . 390 110
United States v. Throckmorton, 98 U. S. 61 242
Waddington v. Cousins, 7 Car. & P. 595 110
Walkerly, Estate of, 108 Cal. 627. .321, 330, 331, 345, 358, 367, 368, 372
Walkerly, Estate of, 108 Cal. 652 321
Warner v. Durant, 76 N. Y. 136 374
Washburn, Estate of (Cal. App.), 106 Pae. 415 318, 366
Whalon v. North Platte Canal Co., 11 Wyo. 347 337
Whitaker v. Parker, 42 Iowa, 585 113
Whitbread, Ex parte, 2 Mer. 99 280, 282
Whitney v. Dodge, 105 Cal. 192 369
Wiggin v. Superior Court, 68 Cal. 398 238
Wilcox, In re, 194 N. Y. 288 368
Williams v. Williams, 73 Cal. 99 369
Willoughby, In re, 11 Paige Ch. 257 280, 281
Wilson v. Baker, 64 Cal. 475 237
Withers v. Denmead, 22 Md. 135 237
Wurt's Exr. v. Page, 19 N. J. Eq. 365 321
Young, Estate of, 123 Cal. 343 316, 356
Young v. Brown, 1 Hagg. Ecc. Rep. 556 Ill
CITATIONS.
CALIFORNIA.
STATUTES.
1850,
CODE
OF
CIVIL PROCEDURE.
SECTION
]
PAGE
SECTION
PAGE
4
?83
284
1619
405
16
284
1643
.... 284
473
238
236
1768
1770
, , . .279,
....279,
284, 285
1294
280, 283
1295
236
1789
283
1308
3S
38
1808
283
1309
1869
217
1443
398
283
290
399
1879
296
1464
1935
38
1465
1940
1943
38
1469
370
397,
398,
.... 38
1476
.404,
398
351
405
1981
217
1538
2061 -
70
1616
CIVIL CODE.
SECTION
PAGE
SECTION
PAGE
41
279
283,
284
285
1058
334
206
1072
331
683
335
1091
334
699
335
1108
334
715
367,
369
367
1109
334
716
1158
334
771
369
1213
335
852
369
335
1227
1276
. . 335
853
2, 7, 293
857
,380
344,
357,
369
1277
293
860,
861 ....
328
1282
..2, 293,
294, 296
863
.335,
354,
366,
367
1287
244
864
336
367
1310
.349, 350
870
1313
286
1039
334
334
334
1322
371
1044
1327
333
1053
331
(xi)
XQ
Citations.
CIVIL CODE— Continued.
SECTION PAGE
1329 331
1338 321, 323
1343 349, 350
1870 293
2220 369
2222 369
SECTION
3275 ..
3349 ..
3384 ..
3420 ..
3421 ..
3423 . .
PAGE
295
..... 295
241
241
241
.237, 241
COFFEY'S
PROBATE DECISIONS.
Estate of CHARLES WILLIAMS, Deceased.
[No. 15,564; decided September 10, ' 1895.]
V7ills — Technicalities of Execution — Acknowledgment. — The techni-
calities of the law relating to the making of wills are deemed to
have been satisfied where the circumstances surrounding the trans-
action show a substantial compliance, and that compliance need not
consist of words or even gestures, but may find its legal expres-i m
in silence and acquiescence. This is particularly true as to the
acknowledgment of the signature.
Wills. — The Acknowledgment of His Signature by a testator is
not required to be made in any particular words or in any specified
manner, but if, by sign, motion, conduct or attending circumstances,
the attesting witness is given to understand that the testator has
already subscribed the instrument, this is a sufficient acknowledg-
ment.
Wills — Testimony of Subscribing Witnesses. — The comparative pow-
ers of remembering legal details in the execution of wills, possessed
by professional and laical minds, is commented upon by the court
in considering the testimony of subscribing witnesses.
Matt. I. Sullivan for the contestant, daughter of decedent
and sole heir at law.
Julius Reimer, for the executor.
Gustav Gutsch, for the legatee.
COFFEY, J. On the eighteenth day of January, 1S95,
Charles "Williams, a resident of the city and county of San
Francisco, state of California, died, leaving estate.
On the nineteenth day of Januarv, 1S95, an instrument nur-
porting to be the last will of said Charles Williams and to
O)
Prob. Dec. Vol. V— 1
2 Coffey's Probate Decisions, Vol. 5.
have been executed and attested on January 21, 1892, was
filed in this court by G. T. Knopf, therein named as executor,
together with a petition for probate. Mary E. Madden, for-
merly Mary E. Williams, a daughter of the deceased, opposes
the petition upon the alleged ground that the instrument was
not executed in accordance with the provisions of section 1276,.
Civil Code.
By the terms of the instrument, the sum of one thousand
dollars is given to one Nicolaus Sinn, a distant relative of the
deceased, the gold watch and chain of the deceased to the
said G. T. Knopf, and the residue of the estate to the said G.
T. Knopf in trust for said Mary E. Williams, to be paid to her
in monthly installments of not more than twenty-five dollars.
The subscribing witnesses to the will are the said G. T.
Knopf and one Julia M. Coffey. Their attestation recites
the facts required by section 1276, Civil Code, and is followed
by a certificate of John F. Lyons, a notary public, in the usual
form of a certificate of acknowledgment of a deed, to the
effect that Charles Williams, on the date of the instrument,
duly acknowledged to the notary that he executed the same
freely and voluntarily and for the uses and purposes therein
mentioned.
The sanity of the testator at the time of the execution of
the instrument was established by sufficient evidence.
It is admitted that the bequest of the gold watch and chain
to G. T. Knopf is void under section 1282, Civil Code.
Issue was joined, and the matter was heard on April 18,
1895. Five witnesses were examined, viz.. Mrs. Julia M.
Coffey and G. T. Knopf, the subscribing witnesses, John F.
Lyons, the notary, Mary E. Madden, the contestant, and
Henry A. Madden, her husband.
Julia M. Coffey testified that on the twenty-first day of
January, 1892, the date of the instrument, she had a desk-
room at No. 607 Montgomery street, in the city of San Fran-
10, within the railing which inclosed the office of Mr. Lyons,
and about fifteen feel from the Latter's dc.sk, which occupied
the front of the store; thai she was sitting at her desk on
that day when Mr. Lynns called her to Ins desk — called her
"loud enough thai she heard him from where she was sitting"
(Transcript, p. 15); that there were two men, besides Mr.
Estate of Williams. 3
Lyons, standing at Mr. Lyons' desk, and that they could
hear him call her (Transcript, p. 15) ; that Mr. Lyons then
and there requested her to sign her name as a witness to the
instrument in question and told her it was a will (Transcript,
p. 4) ; that she took the pen and, either standing or sitting
at Mr. Lyons' desk, signed it, while Mr. Lyons and the two
other men were standing by — "standing right near the desk
somewhere" (p. 4) — "right beside her" (p. 13) — "right by
the desk and around by the desk" (p. 16) — and therefore
were able to, and probably did, see her sign it (p. 15) ; that
after signing her name she went back to her desk (p. 72),
and that she did not remember the appearance of the deceased
(p. 8), nor whether he said anything (p. 22), nor other facts,
testified to by Mr. Lyons (infra) as having occurred at the
time (p. 72).
G. T. Knopf, the other subscribing witness, testified that
he wrote out the will at the request of the deceased, using a
printed blank for that purpose (p. 29) ; that he and the de-
ceased went together to the office of the notary, Mr. Lyons,
with the instrument, being then under the impression that the
same, to be valid, must be acknowledged like a deed (p. 31) ;
that Mr. Lyons, when they saw him, advised them as to how
many witnesses would be necessary (p. 45), and that an
acknowledgment "did not hold," but would not hurt (p. 46) ;
that Mr. Lyons asked Mr. "Williams if this was his last will,
and Williams said "yes" and then signed it: that Julia M-
Coffey, at the time he signed it. was sitting at her desk, about
fifteen feet away (p. 23) ; that Williams requested him,
Knopf, to sign as a witness (p. 33) ; that Williams and the
witness signed before Mrs. Coffey did (pp. 33, 34) ; that the
deceased, at the time the instrument was executed, declared it
to be his will (p. 32) ; that Mr. Lyons called Mrs. Coffey over
and introduced her to Mr. Williams (pp. 34, 35), and that
Mr. Williams said to Mrs. Coffey that that was his last will
(p. 42) ; that when Mr. Lyons asked Mrs. Coffey to be a wit-
ness, Mr. Williams could hear his request (p. 37) ; that the
deceased signed in the presence of witness and of Mr. Lyons,
on Mr. Lyons' desk (p. 49) ; that Mrs. Coffey, in the presence
of both the deceased and the witness, signed the instrument
about half a minute after they had signed it (pp. 28, 49) ;
4 Coffey's Probate Decisions, Vol. 5.
and that he, the witness, did not remember all the many de*
tails of the transaction (p. 28).
John F. Lyons, on direct examination, testified as follows:
"Well, on this day [January 21, 1892], a Mr. Knopf, whom
I was acquainted with for years, brought this gentleman
Williams, whom I had never seen before, and presented this
instrument, saying that this was the last will and testament of
Mr. Williams, and that he wanted it acknowledged ; I looked
at it and asked him if he had any witnesses. He said he had
Mr. Knopf, and he did not have any other. .Well, Mr. Will-
iams, I asked him to sign it at my desk and he sat down and
wrote it ; and then also Mr. Knopf signed it ; and I called
Airs. Coffey up and introduced her to Mr. Williams; and I
told Mrs. Coffey that this was Mr. Williams' last will and
testament, and that was his signature, he had just signed it.
and Mr. Williams wanted her to sign it as a witness to his
last will and testament. And I said, 'Mrs. Coffey, this is
his signature'; and I said to Mr. Williams also, 'Is that not
your signature?' Says he: 'Yes. Do you want Mrs. Coffey
to sign it?' He replied in the affirmative, or made an af-
firmative answer of some kind, and so she signed that."
(Transcript, p. 58.)
On cross-examination, Mr. Lyons admitted having made
statements to Mrs. Julia M. Coffey, to Mr. and Airs. Madden
and to the counsel for the contestant, substantially to the ef-
fect that he did not remember the circumstances of the trans-
action. The witness, in explanation, testified that since
making the statements he had looked at his records, that
"these tilings generally came back to him after a while when
he gol a chance to think of them" (p. 61) ; and that, by re-
freshing his memory, he might distinctly testify as to circum-
stances attending the execution of any will drawn or signed
in his office more than two years ago (p. G4). Bei g further
med on the subjeel by conl it's counsel, the witi
swore that it was his invariable practice to refer to signatures
where wills were signed in the absei ce of witnesses (p. 63),
bu1 that, independently of his practice, he distinctly remem-
1 having called M Coffey's attention to the signature
he deci ased and that Mr. Williams acknowledged the same
Estate op Williams. 5
to her as his signature (pp. 64, 63). In answer to questions
by the court, the witness testified as follows (pp. 66, 67, 68) :
"Q. Mr. Williams' signature was appended to that instru-
ment when he came in with Mr. Knopf? A. No, sir, it was
not; it was signed in my presence.
"Q. It was signed in your presence and at your desk? A.
Yes, sir.
"Q. Then Mr. Knopf signed it? A. Yes, sir.
"Q. That was before you called Mrs. Coffey, was it? A.
Yns, sir.
"Q. Then you called her up? A. Yes, sir.
"Q. AVhat occurred, if anything, between her and Charles
Williams? A. I don't recollect.
"Q. You are sure she did not see him sign Charles Williams,
his name? A. She came.
"Q. She did not see him sign? A. No, sir, I don't think
she did.
"Q. Nor did she see Mr. Knopf sign? A. No, sir, I don't
think so.
"Q. When she came, you called her up about fifteen feet
uway? A. Yes, sir, about that, I think.
"Q. Give me the tone of voice, the very expression you used
when you called her. A. Says I: 'Mrs. Coffey, will you step
this way and act as a witness?'
"Q. You said it in just that way? A. Something similar.
"Q. You called her up and asked her to acknowledge it,
did you say? A. No, sir, as a witness. I did not tell her
what it was until she came up to my desk.
"Q. She did come from her desk; her desk was on the
inside? A. Yes, sir, the further end of my office.
"Q. And she came up, and then what occurred? A. I in-
troduced her to Mr. Williams.
"Q. In what manner; what did you say? A. The usual
introduction.
"Q. What was it? I don't know what was the usual in-
troduction in your office. A. 'Mrs. Coffey, this is Mr. Will-
iams, Charles Williams. This is his last will and testament,
and he declared it in the presence of us.'
"Q. You said this all of your motion ? A. I used the words
of the attestation as near as I could.
6 Coffey's Probate Decisions, Vol. 5.
"Q. You did? A. Without repeating it.
"Q. Say that again, without repeating them. Say now
what you said at that time to Mrs. Coffey in the presence and
hearing of Mr. Williams. A. 'Mr. Williams declares this to
be his last will and testament and he wishes you to act as a
witness to his signature for this instrument, which he has
just signed'; something like that, not the words exactly.
"Q. That is just about what you said? A. Yes, sir.
"Q. Did Mr. Williams say anything then? A. I don't
recollect. He affirmed what I said.
"Q. How did he affirm it? A. By acquiescing.
"Q. Did he say anything? A. Yes, sir, he nodded his head,
or something of that kind. I don't recollect." (pp. 66, 68.)
Henry A. Madden, husband of the contestant, testified that
about three days after Mr. Williams was buried he, the wit-
ness, with his wife, called on Mr. Lyons, presented to him a
copy of the will and asked him if he knew anything about it,
to which Mr. Lyons replied that it was "a thing foreign to
him"; that Mr. Lyons subsequently pulled forth his ledger,
looked over it, saw the name, and said that he remembered
about it ; that on a later occasion, when witness with his wife
and Mrs. Coffey called on Mr. Lyons, the latter said that they
had been "down and bothering" him about the matter and
that he did not know "the first thing about it at all" (pp. 78,
79) ; that, on a still later occasion, the witness again went to
see Mr. Lyons, alone this time, and Mr. Lyons said: "The will
is all right. I know all about the will, and the will is all
right." (p. 80.)
Mrs. Mary E. Madden, the contestant, in substance, con-
finned the testimony of her husband touching the conversa-
tion had with Mr. Lyons upon the occasion of their joint visit
to his office.
The answers of John F. Lyons to the questions addressed
to him by the court probably state the actual facts as accur-
rately as any witness could be expected to remember them
after a Lapse of more than three years. Mrs. Coffey knew
neither Mr. Williams nor Mr. Knopf; she was busy at her
desk when she was called; she came over, understood what
was wanted, Bigned her name as a witness, and immediately
relumed to her own work. Mr. Knopf, when he came to the
Estate of Williams. 7
notary's office, was under the impression that a will, to be
valid, had to be acknowledged like a deed. As a layman he
was unacquainted with the law referring to the execution of
wills or with the importance of observing the formalities re-
quired by section 1276, Civil Code. The legal details of the
transaction, including the particular form and succession of
declarations, so noticeable to a legal mind, naturally failed
to attract his special attention or to impress themselves
strongly or clearly upon his memory. Hence, the indefinite-
ness of his testimony on some points, as, e. g., his failure to
recollect whether the deceased declared the instrument his
will before or after he signed it. "I don't think there is any
difference, he meant to say that" (after he signed it — p. 28).
John F. Lyons, however, who, in the course of his business,
had learned how a will must be made under the law, and to
whom the parties applied in his professional capacity for the
very purpose of making a will according to law, would nat-
urally pay attention to those important details, and they
would impress themselves upon his mind, though he might
forget the face of the principal party. They might lie dor-
mant in his memory. Professional men frequently, and in
some cases intentionally, allow legal matters to vanish from
their ever-ready recollection, and then, while engaged in other
matters, or having no particular interest in exerting them-
selves for the sake of recalling facts immaterial to them, find
it troublesome to be interviewed in regard to such matters,
particularly by strangers. What would be more, available
to a man thus annoyed, as a means of escape from such ques-
tions, than to answer that he does not know "the first thing"
about the transaction? This was the case of Mr. Lyons pre-
cisely. When he was subpoenaed as a witness (by the pro-
ponent of the will) and knew that he would be compelled to
testify upon oath, he refreshed his memory by making an
effort to do so ; and gradually, one after another, the facts
reappeared in his mind. His testimony is positive and dis-
tinct on all points necessary to establish the validity of the
will. He is not contradicted by the testimony of Mr. and
Mrs. Madden referring to his statements made to them ; for
he had substantially admitted the statements before the oth-
ers were called on the stand. The fact that Mrs. Julia M.
8 Coffey's Probate Decisions, Vol. 5.
Coffey did not remember certain circumstances, if they oc-
curred (p. 75), probably because she took no interest (p. 74,
last line), does not contradict the affirmative answers of Mr.
Lyons. The evidence, on the whole, shows no necessary or
substantial conflict with Mr. Lyons' testimony; his reputation
has not been attacked ; and the court, therefore, is bound to
accept his testimony as true.
Particular stress must be laid upon the fact that accord-
ing to every witness present at the transaction, not excluding
Mrs. Julia M. Coffey, whatever was done and said at the time
occurred within the sight and hearing of the deceased. No
question is raised as to his intention to make the instrument
then and there executed by him his last will and testament.
The fairness of its provisions, which (apart from the legacy
of $1,000), were evidently intended for the benefit of his
daughter, the contestant, herself, is not disputed. Her oppo-
sition on the ground that the deceased was mentally unsound
has been withdrawn (p. 70). The contest concerns only his
compliance, in detail, with all the technicalities of the law.
It is a settled rule that the technicalities of the law relating
to the making of wills are deemed to have been satisfied where
the circumstances surrounding the transaction show a sub-
stantial compliance, and that that compliance need not con-
sist of words or even gestures, but may find its legal expres-
sion in silence and acquiescence.
This is particularly true as regards the acknowledgment
of the signature.
"The acknowledgment is not required to be made in any
particular words or in any specified manner, but if, by sign,
motion, conduct or attending < in it instances, the attesting wit-
ness is given to understand that the testator had already sub-
scribed the instrument, it is sufficient acknowledgment":
Luper v. Werts, 1!) Or. 122, 23 Pac. 850, 7 Am. Prob. Rep.
S
"As to request to Bign as witnesses — the request may be
wonis or signs. It may be implied. For instance — if 1 am
about making a will, it is a good request if I by words make
the request ; it is good, if the request is made for me by an-
other, I understanding the matter and acting in accordance
with the making of the request. No particular form of re-
Estate of Williams. 9
quest is necessary. It may be implied from acts. Anything
which conveys to the witnesses the idea that I desire them to
be witnesses is a good request. Even a knowing acquiescence
may be equivalent to an actual request in words": Estate of
Howard Crittenden, Myr. Prob. Rep. 54, 55.
The request need not be formally expressed in words ; an
act or sign will suffice, and it may be made either by the
testator himself or by some one acting for him, in his pres-
ence and hearing": Beach on Law of Wills, sec. 46, and a
large number of authorities cited in notes 2 and 3.
The case of the Will of Humphreys, Tuck. Sur. Rep. (N. Y.)
142, was in all its essential features almost identical with the
case under consideration. It sustains, in felicitous language,
the observations made above on the comparative powers of
remembering legal details, possessed by professional and by
laical minds. It holds that the evidence of a professional
man in such case, swearing that all the formalities were ob-
served, is more reliable than the evidence of two other wit-
nesses, ladies, not remembering a portion of the proceeding.
It attaches to the attestation clause, certifying the observance
of the necessary formalities, the presumption "omnia esse
rite acta" — a view which must have formed the basis of the
ruling affirmed by the supreme court of this state in Estate
of Gharky, 57 Cal. 280.
WHAT CONSTITUTES A TESTAMENTARY WHITING.
General Requisites and Essentials.
Definition of Will. — "A will is commonly defined as an instrument
by which one makes a disposition of his property to take effect after
his death, or as a declaration of one's intention as to the manner in
which he would have his property disposed of after his death. These
definitions make the disposition of property an essential feature of
a will, whereas an instrument merely appointing an executor, with-
out making any bequest or devise of property, may, nevertheless,
be a will. More accurately defined, a will is the legal declaration
of the intention of a person, which he wills to be performed after
his death, in respect to the distribution of his property, the adminis-
tration of his estate, or the guardianship of his children. The gen-
eric term 'will' includes codicil": 1 Ross on Probate Law and Prac-
tice, 1.
Some authorities have thought that an instrument appointing a
guardian for the children of the maker, without any disposition of
10 Coffey's Probate Decisions, Vol. 5.
property, is not entitled to probate as a will: Williams v. Ncland,
10 Tex. Civ. App. 629, 32 S. W. 328; In the Goods of Morton, 3
Swab. & T. 422. And it has been affirmed that an instrument ex-
cluding a son of the author from participation in his estate, yet
making no disposition thereof, is not a will: Coffmau v. Coffman, 85
Va. 459, 8 S. E. 672. Some courts have supposed that a man cannot
dispose of his dead body by will, on the theory that there is no
property in it: Enos v. Snyder, 131 Cal. 68, 82 Am. St. Rep. 330, 63
Pac. 170; Williams v. Williams, L. R. 20 Ch. D. 659. Compare the
note to Keyes v. Konkel, 75 Am. St. Rep. 425.
Essential Characteristics. — The essential characteristic of a will is,
that it operates only upon and by reason of the death of the maker.
Up to that time it is ambulatory and revocable. By its execution
the author has parted with no rights nor devested himself of no
interest in or control over his property, and no rights have accrued
to, and no estate has vested in, any other person. The death of
the maker for the first time establishes the character of the instru-
ment. It then ceases to be ambulatory, acquires a fixed status, and
operates as a transfer of title. An instrument which is to operate
in the lifetime of the donor, and to pass an interest in his property
before his death, even though its absolute enjoyment by the donee
is postponed till the death of the donor, or even if it is contingent
upon the survivorship of the donee, is a deed, contract, gift, or some
instrument other than a will. It is essential to a will that it should
be made to depend upon the. death of the maker to consummate it,
up to which time it is inoperative and revocable: Gillham v. Mustin,
42 Ala. 365; Daniel v. Hill, 52 Ala. 430; Refeld v. Bellette, 14
Ark. 148; Nichols v. Emery, 109 Cal. 323, 50 Am. St. Rep. 43, 41
Pac. 1089; Kirkpatrick v. Kirkpatrick, 6 Houst. (Del.) 569; Jones
v. Morgan, 13 Ga. 515; Pelley v. Earles (Ky.), 55 S. W. 550*; Carey
v. Dennis, 13 Md. 1; McDaniel v. Johns, 45 Miss. G.'.2; O'Day v.
Meadows, 194 Mo. 588, 112 Am. St. Rep. 542, 92 S. W. 637; Teske
v. Dittberner, 65 Neb. 167, 101 Am. St. Rep. 614, 91 N. W. 188;
Matter of Diez, 50 N. Y. 88; Rochester Sav. Bank v. Bailey, 34
Misc. Rep. 247, 69 N. Y. Supp. 163; Egerton v. Carr, 94 N. C. 648.
55 Am. Rep. 630; Patterson v. English, 71 Pa. 454; Sunday's Estate,
167 Pa. 30, 31 Atl. 353; Kinard v. Kinard, Spear Eq. 256; Roberts
v. Coleman, 'M W. Va. 143, 16 S. E. 482; In the Goods of Robinson,
L. E. 1 Pro. & D. 3
Rules of Construction.
In General. — The rule of construction in determining whether nn
umenl is a will or contract is, that if it passes a present in-
terest, it iu a deed nr contract; but if it does not pass an interest or
right until the death of the maker, it is a testamentary paper. And
in ascertaining whether an instrument is a testamenl or a contract,
courts do not allow the use "f language peculiar to either class of
ruments, nor even the belief of the maker as to the character of
Estate of Williams. 11
the instrument to control inflexibly their construction of it; but giv-
ing due weight to these circumstances, courts look further, and
weighing all the language as well as the facts and circumstances sur-
rounding the parties and attending the execution of the instrument,
give to it such a construction as will effectuate the manifest inten-
tion of the maker: Clarke v. Eansom, 50 Cal. 595; Burlington Uni-
versity v. Barrett, 22 Iowa, 60, 92 Am. Dec. 376.
Intention of the Maker. — It is the animus testandi that makes an
instrument a will. When the animus testandi is established, the
character of the instrument is fixed — it is a will. In the absence of
a testamentary intent, there can be no will. A paper, to be a will,
must be intended to take effect as a testamentary document: Estate
of Meade, 118 Cal. 428, 62 Am. St. Eep. 244, 50 Pac. 544; Estate of
Scott, 128 Cal. 57, 60 Pac. 527; In re Estate of Longer, 108 Iowa,
34, 75 Am. St. Eep. 206, 78 N. W. 834; Lyles v. Lyles, 2 Nott & McC.
531; Ferguson-Davie v. Ferguson-Davie, 15 Prob. Div. 109. It is the
settled intention of a man to pass his property in a certain way
after his death that constitutes an instrument a will: Boling v. Boling,
22 Ala. 826. The true test is not the testator's realization that it
is a will, but his intention to create a revocable disposition of his
property to accrue and take effect after his death, and passing no
present interest: Kenney v. Parks (Cal.), 54 Pac. 251. When an
instrument on its face is imperfect and equivocal, the presumption
is against its operating as testamentary, unless it is made clearly
to appear that it was executed animo testandi, or being intended by
the author to operate as a posthumous disposition of his estate. Nev-
ertheless, courts have inclined to solve doubtful cases by giving such
instruments a testamentary effect when necessary to prevent the
defeat of their legal operation: Eice v. Eice, 68 Ala. 216. See, too,
Kelleher v. Kernan, 60 Md. 440.
The intention of the maker, then, is the controlling consideration in
construing an instrument of doubtful testamentary character. This
intention usually is to be gathered from the terms of the entire in-
strument, construed together, and always so when its provisions
are plain and clear, but extrinsic evidence may be received to
enable the court to place itself in the position of the parties in
order to interpret doubtful and ambiguous provisions. The inten-
tion may be ascertained, not only from ,the instrument itself, but
from all the facts and circumstances surrounding the parties and
attending the execution of the instrument: Eice v. Eice, 68 Ala.
216; Tuttle v. Eaish (Iowa), 90 N. W. 66; Beebe v. McKenzie, 19
Or. 296, 24 Pac. 236; Kisecker's Estate, 190 Pa. 476, 42 Atl. 886;
Parker v. Stephens (Tex. Civ. App.), 39 S. W. 164. Parol evidence
may be received to aid in arriving at the intention of the maker and
the character of the instrument, when such intention is not clearly
and satisfactorily expressed in the writing itself: Clarke v. Eansom,
50 Cal. 595; Kelleher v. Kernan, 60 Md. 440; Egerton v. Carr, 94
12 Coffey's Probate Decisions, Vol. 5.
N. C. 618, 55 Am. Rep. 630; "Witherspoon v. Witherspoon, 2 McCord,
520. Such evidence is admissible to show that the maker did not,
at the time of signing an instrument, understand it was a will or
intend that it should operate as such: Barker v. Comins, 110 Mass.
477, 4SS. Testimony of his conversation at that time may b3 re-
eeived to show his intention: Wareham v. Seller, 9 Gill & J. 9S.
Testamentary Writings in Various Forms.
Materiality of Form in General. — It is well understood that the
formalities prescribed by statute in the execution of wills must be
substantially observed in order to make them effective and valid
testamentary instruments: In re Walker, 110 Cal. 3S7, 52 Am. St. Rep.
104, 42 Pac. 815; Chaffee v. Eaptist Missionary Convention, 10
Paige, 85, 40 Am. Dec. 225; Peake v. Jenkins, 80 Va. 293; Roberts
v. Coleman, 37 W. Va. 143, 16 S. E. 482. However, if the statu-
tory requirements are complied with in the execution of an instru-
ment, its form is of little consequence in determining whether or not
it is testamentary: Lautenschager v. Lautenschager, 80 Mich. 285. 45
N. W. 147; Ferris v. Neville, 127 Mich. 444, 89 Am. St. Rep. 480, 86
N. W. 960. But while courts indulge in no inconsiderable liberality
in construing and giving effect to the intent of testamentary papers
without strict requirements of form and technicality, of course not
every writing rises to the dignity of a testamentary instrument. If
an instrument is neither testamentary in form nor substance, there
is no intrinsic evidence that it was intended as a will; and if
there is no other evidence to show that it was intended as a post-
humous disposition of property, it cannot be a will: Lungren v.
Swartzwelder, 44 Md. 482; Young v. Wark, 76 Miss. 829, 25 South.
660; Patterson v. English, 71 Pa. 454; Jacoby's Estate, 190 Pa. 382,
42 Atl. 1026; Johnson v. Johnson, 103 Tenn. 32, 52 S. W. 814.
It is not requisite to the validity of a will that it should assume
any particular form, or that it should be framed in language tech-
nically appropriate to its testamentary character. However ir-
regular in form or inartificial in expression it may be, if it dis-
closes the intention that the destination of the property on which
it operates is posthumous only, it is testamentary. Neither is it
material by what name or title it is designated. Instruments in
form and denominated deeds, contracts, letters, and other instru-
ments, have often been considered testamentary, to whose validity
the statutory formalities of execution are requisite, and to whose
operation probate is necessary: Kinnebrew v. Kinnebrew, 35 Ala.
628; Daniel v. Hill, 52 Ala. 430; Eestei v. V ;-, 2 Ga. 31; In
re Estate of Longer, 108 Iowa, 34, 75 Am. St. Rep. 206, 78 N. W.
8:; I; In re Btumpenhauser's . 108 Iowa, 555, 7i> N. W. 376;
Kelleher v. Kernan, 60 Md. 140; High, Appellant, 2 Doug. (Mich.)
515, 521; Conrad v. Douglas, 59 Minn. 198, 6] N. W. <;;".".; Miller
v. Holt, 68 Mo. 584; Matter of Belcher, 66 X. 0. 51; Tozer v.
Estate of Williams. 13
Jackson, 1G4 Pa. 373, 30 Atl. 400; Gaston's Estate, 188 Pa. 374, G8
Am. St. Eep. 874, 41 Atl. 529; Kinard v. Kinard, Spear Eq. 256;
McBride v. McBride, 26 Gratt. 476; Eoberts v. Coleman, 37 W. Va.
143, 16 S. E. 482.
An instrument in form "I agree to will," but intended by the
malier as a will, and executed as provided for in the case of wills,
is a will: In re Estate of Longer, 10S Iowa, 34, 75 Am. St. Rep.
205, 78 N. W. 834.
'"The form of an instrument is of little importance in determining
whether or not it is testamentary. It is not essential to the creation
of a will that it should assume any particular form, or that it should
be couched in language technically appropriate to its testamentary
character; instruments in the form of deed, contracts, letters, trans-
fers of bank deposits, and other writings, have often been considered
testamentary, which must, to operate as transfers of property, be
executed in the manner prescribed by the statute of wills. And
however informal a writing may be, or however crude and inartificial
its expression, still, if it discloses a testamentary intention, it will
be given effect as a will, provided the statutory requirements of
execution have been substantially complied with.
"The intention of the maker, rather than the form of the instru-
ment, is the controlling consideration and the ultimate object of
inquiry in the interpretation of writings of doubtful testamentary
character. Did he intend the instrument to be ambulatory, revocable,
and dependent upon his death for consummation, or did he intend to
create irrevocable rights and interests, though perhaps with their
enjoyment postponed? If the former, the instrument is testamentary;
if the latter, it is not. Primarily, the intention of the maker is to
be gathered from the language of the entire instrument, construing
all the different parts together. But if his intention is not clearly
and satisfactorily expressed in the writing itself, then a recourse
to extrinsic evidence and a consideration of the facts and circum-
stances attending the execution of the instrument and surrounding
the parties is proper": 1 Eoss on Probate Law and Practice, 2-4.
Illustrations of Informal Wills. — Instruments in the following forms
have been held testamentary in character, and valid or not according
as they were executed as required by the statute of wills: "I wish
$5,000 to go to John C. Cole in the event of my dying intestate,
and the balance of my property to go to Robert Beatie, to be dis-
posed of by him as his judgment may dictate": Matter of S.state of
Wood, 36 Cal. 75; "Dear old Nance: I wish to give you my watch,
two shawls, and also $5,000. Your old friend, E. A. Gordon": Clarke
v. Eausom, 50 Cal. 595; "This is to serifey that ie levet to mey
wife Eeal and personal and she to dispose for them as she wis"
(olographic will): Mitchell v. Donohue, 100 Cal. 202, 38 Am. St. Eep.
279, 34 Pac. 614; "After my mother's death, my cousin, S., is my
heir. This writing is instead of a formal will which I intend to
14 Coffey's Probate Decisions, Vol. 5.
make. M. B., executrix": Matter of Beebe, 6 Dem. (N. Y.) 43 j
"Know all men by these presents, that I, J. M., .... do order and
direct my administrators or executors, in case of my death, to pay
R. C. the sum of $75,000, as a token of my regard for him and to
commemorate the long friendship existing between us": Frew v.
Clarke, 80 Pa. 170; "I, C. S., husband of M. S., have insured my
life with the Knickerbocker Co., in New York, for four thousand dol-
lars ($4,000). I, C. S., assign the whole amount, four thousand dol-
lars, to my wife M. S. after my death, when she can do with it
according to her best will without partiality toward her children.
This I have written with good sound mind, and set my name to it":
Shad's Appeal, 88 Pa. Ill; "This article is to certify that if E. S.
survive me. I bequeath him one thousand dollars of my property —
free from any lien or encumbrance. To the above bequest I herewith
set my hand and seal this first day of June, 1888": Swann v. Hous-
man, 90 Va. 816, 20 S. E. 830; a letter of attorney, authorizing per-
sons therein named to administer upon the party's estate after his
death: Rose v. Quick, 30 Pa. 225; an assignment, in consideration of
one dollar and love and affection, to a daughter of all one's property
to take effect at death: Robinson v. Brewster, 140 111. 649, 33 Am.
St. Bep. 265, 30 N. E. 683; an indorsement by the holder of cer-
tificates in a beneficial order, giving her children all her interest
therein at her death, and appointing an executrix to receive payment
thereof: Grand Fountain etc. v. Wilson, 96 Va. 594, 32 S. E. 48; and
a writing in form, substantially, "I, A, out of my love for my sister
B, do agree to make her my heir if she outlives me; and I, B, out of
love for my sister A, do agree to make her my heir if she outlives
me": Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751.
Wills in the Form of Transfers of Bank Deposits. — The question
sometimes arises as to whether a transfer of a bank deposit is a gift
or a testamentary disposition of the fund. If the donor does not
mean to relinquish his right to use the money on deposit during his
lifetime but to keep control of it, and on his death the funds or what
remain of them to go to the donee, then there is an attempted testa-
mentary disposition of the money which will be ineffectual unless
the statute of wills is complied with: Main's Appeal, 73 Conn. 638,
\tl. 965; Dougherty v. Moore, 71 Md. 248, 17 Am. St. Rep. 521.
18 Atl. 35. See, also, Knight v. Tripp, 121 Cal. 674, 54 Pac. 267;
•mi v. AHegreti, 146 Cal. 214, 79 Pac. 871; McCloskey v. Tierney,
141 Cal. 101, 99 Am. St. Rep. 33, 74 Pac. 699. The changing of an
account in a bank from the name of a husband to that of a husband
and wife, and Die writing of an agreement at the head of the pass-
book, to which the husband and Hie bank assent, tli.it the moneys are
be subject to the order of either him or her, the balance at the
'bath of either to belong to the survivor, do not constitute a will:
Metropolitan Sav. Bank v. Mm ■ 2 Md. :ii4, 51 Am. St. Rep.
il'.j, 33 Atl. (J 10. But an ment between two savings bank de
Estate op Williams. 15
positors that the survivor shall have the other's deposit on his
death, each retaining absolute control over his own deposit during
life, is a testamentary disposition of the balance remaining at the
decease, and if not properly executed as such cannot be given effect:
Towle v. Wood, 60 N. H. 434, 49 Am. Rep. 326.
Where a railway employee becomes a depositor in the company's
saving fund under an agreement which preserves to him the right
to deal with the deposits for his own benefit, but which provides
that upon his death any balance standing to his credit shall be paid
to his wife, the gift is testamentary and invalid if not made in the
manner prescribed by the statute of wills: Stevenson v. Earl, 65 N. J.
Eq. 721, 103 Am. St. Rep. 790, 55 Atl. 1091.
In the Form of Letters. — A testamentary writing may be in the
form of a letter: Crowley v. Knapp, 42 N. J. L. 297; Morrell v.
Dickey, 1 Johns. Ch. 153. But if not executed according to the re-
quirements of the statute of wills, it will be ineffectual: Orth v. Orth,
145 Ind. 184, 57 Am. St. Rep. 185, 48 N. E. 277, 44 N. E. 17; Gibson
v. Van Syckle, 47 Mich. 439, 11 N. W. 261. A writing in the form
of a letter from a person in his last illness to his attorney, requesting
the latter to draw a will in accordance with instructions therein set
forth, and containing all the requisites of a will as to the disposition
of property, may be established as a will by proof of its due execu-
tion and publication by the testator as such: Scott's Estate, 147 Pa.
89, 30 Am. St. Rep. 713, 23 Atl. 212. And a letter by a testator
to his attorney, saying: "What I want is for you to change my will
so that she may be •entitled to all that belongs to her as my wife.
I am in very poor health, and would like this attended to as soon
as convenient. I do not know what ought to be done, but you do,"
should be admitted to probate with the instrument to which it refers:
Barney v. Hayes, 11 Mont. 571, 28 Am. St. Rep. 495, 29 Pac. 282. A
person wrote and signed on the back of a business letter addressed
to a man and his wife the following, addressed to her: "After my
death you are to have $40,000; this you are to have, will or no will;
take care of this until my death." This was held to be a testa-
mentary gift of personalty: Byers v. Hoppe, 61 Md. 207, 48 Am.
Rep. 89.
On the other hand, a letter directed to an undertaker, asking him,
in the event of the writer's death, to cremate her body and to apprise
her brother of such death, adding that her brother would take charge
of her estate and be sole administrator without bonds, to trade,
sell, or occupy, as may seem fit to him, is not testamentary in char-
acter, and neither gives him her estate nor appoints him administrator
thereof: Estate of Meade, 118 Cal. 428, 62' Am. St. Rep. 244, 50 Pac.
541. And a letter from a brother to his sister expressing a desire
for information about her children and mother, and stating that he
is pecuniarily independent; that probably his health is ruined; that
he wants to anticipate possibilities, and that "you and your children
1G Coffey's Probate Decisions, Vol. 5.
get everything; your boy I want given the best education," is not
testamentary: Estate of Richardson, 94 Cal. 63, 29 Pac. 484.
Of Obligations and Acknowledgments of Indebtedness. — The fact
that an obligation is made payable after the death of the obligor does
not of itself make it testamentary: Fitzgerald v. English, 73 Minn.
266, 76 N. W. 27. But if the relation of debtor and creditor is to
exist it would seem that it must be created and subsist in the life-
time of the parties, though payment may be deferred until the death
of one. A writing which reads, "At my death, my estate or my
executor pay to July Ann Cover the sum of $3,000," is testamentary
and not an obligation for the payment of money, though delivered to
the obligee: Cover v. Stem, 67 Md. 49, 1 Am. St. Eep. 406, 10 Atl. 231.
See, in this connection, Ferris v. Neville, 127 Mich. 444, 89 Am. St.
Rep. 480, 86 N. W. 960. But an instrument in the following form:
"Due F. the sum of two hundred and four dollars and sixty-eight
cents with interest, and said sum of money and interest is not to
be paid during my lifetime, but to be paid by my executor out of
my estate within a year after my death; and said sum Is due and
owing by my son E. to the said F. I bind my executor to pay the
same out of my estate, and then to be deducted from the distributive
share coming to my said son E. out of my estate," is an acknowl-
edgment of indebtedness binding on the executor: Feeser v. Feeser,
93 Md. 716, 50 Atl. 406. So an instrument executed by A, declaring
that, in consideration of the care and attention shown him by B
during his illness, he was justly indebted to her, and declaring that
his executor or administrator should pay her $1,000 in one year after
his decease, which was delivered to B, is an obligntion and not a
testamentary disposition: Shields v. Irwin, 3 Yeates, 389.
In the Form of Contracts. — A will may be in form and in some sub-
stantial respects a contract if the intention of the author to make
it a testamentary disposition of his property is nevertheless clearly
apparent: Castor v. Jones, S6 Ind. 2S9; lleaston v. Krieg, 167 Ind.
101, 119 Am. St. Eep. 475, 77 N. E. 805; Teske v. Dittberner, G5 Neb.
167, 101 Am. St. Rep. 614, 91 N. W. 188. A contract whereby A
agrees with B that if the latter will maintain the former daring
life, "all Hie personal property of A shall, at his death, become the
property of B," is testamentary, and will not be given effect if the
atte tation is ii snt: McCarty v. Waterman, 84 Ind. 550. The
. as given by the court for this conclusion, were that the
consideration for the agreemenl was executory, no present interest
was . and A . in accord with the terms of the a jreement,
have deprived ]', of a ri','iit to any specific property by devesting him-
all his personalty so that none Bhould "belong to him." In
ry v. Darling, 50 Ohio St. 160, 33 N. B. 715, a writing by one
sister covenanting with another thai if the latter will reside with
l,er she desires Bhe will "give and bequeath" to her all
which Bhe dies Beised, is held enforceable as a con-
Estate of Williams. 1 i
tract, and not void for want of conformity with the statute of wills.
"It is the essence of a will," says the court, "that its dispositions
should be in the nature of gifts."
Clearly, a contract does not take on a testamentary character
merely because its performance is postponed until after the death
of the maker and devolves upon his representative. The instrument
must, of course, possess the essential characteristics of a testamen-
tary writing: Huguley v. Lanier, 86 Ga. 636, 22 Am. St. Rep. 487,
12 S. E. 922. Where an uncle and nephew enter into articles of
partnership for the practice of medicine, whereby it is agreed to
that, "in the event of the death of the senior member of the firm,
all his property, personal and otherwise, which he held in partner-
ship at the time of his death, should go to the junior partner," this
is not a testamentary disposition of the property: McKinnon v.
McKinnon, 56 Fed. 409, reversing 46 Fed. 713.
Of Promissory Notes. — A promissory note may be made payable
after death. The mere fact that it is made payable at or a certain
time after the death of the maker does not make it a testamentary
paper which must be executed in accordance with the statute of
wills: Bristol v. Warner, 19 Conn. 7; Beatty v. Western College, 177
111. 280, 69 Am. St. Eep. 242, 52 N. E. 432; Price v. Jones, 105 Ind.
543, 55 Am. Eep. 230, 5 N. E. 683; Wolfe v. Wilsey, 2 Ind. App.
549, 28 N. E. 1004; Martin v. Stone, 67 N. H. 367, 29 Atl. 845;
liegeman v. Moon, 131 N. Y. 462, 30 N. E. 487; Crider v. Shelby, 95
Fed. 212; Eoffey v. Greenwood, 10 Ad. & E. 222. A note payable
on or before a certain date, providing that in the event of the death
of the maker before maturity it shall then become due, is not
testamentary: Miller v. Western College, 71 111. App. 587. And a
note, founded on a consideration, which remains in the hands of the
payee until the death of the maker, although received by him and
held during the life of the maker subject to the condition that it
should be returned to the maker whenever he might wish it, is
valid: Worth v. Case, 42 N. Y. 362.
Where the payee of a note wrote upon its back: "If I am not
living at the time this note is paid, I order the contents to be
paid to A. H.," and having signed it, died before the note was
paid, it was held that the indorsement was testamentary and en-
titled to probate as a will: Hunt v. Hunt, 4 N. H. 434, 17 Am. Dec.
438. It is well to remember that the statute of wills cannot, of
course, be evaded by making a promissory note intended as a testa-
mentary bequest merely: Graves v. Safford, 41 111. App. 659.
In the Form of Leases. — A provision in a lease that, in the event of
the death of the lessor before the expiration of the lease, the rent
for the unexpired term shall be paid to his wife, she not being a
party to the lease or apparently giving any consideration for the
promise, is in the nature of a will and inoperative if not properly
executed: Priester v. Hohloch, 70 App. Div. 256, 75 N. Y. Supp. 40-3.
Prob. Dec, Vol. V — 2
18 Coffey's Probate Decisions, Vol. 5.
But in the case of In the Goods of Robinson, D. R. 1 Pro. & D. 384,
a provision in a lease as to the application of the rent in case of
the lessor's death before the expiration of the lease, the lessee being
beneficially interested in such application, was held not testamentary,
since no part of the agreement was revocable and it came into opera-
tion immediately upon its execution.
Wills in the Form of Deeds and Conveyances.
Distinction Between Wills and Deeds. — Instruments of doubtful
testamentary character are found most frequently in the form of
deeds. The fact that a writing is in the form of a deed is persuasive,
but not conclusive, that it was not intended as a will. If it passes
no present interest or right, is dependent on the death of the maker
to consummate it, and is under his control and recoverable during
his lifetime, it is a will, notwithstanding it is denominated a deed,
and is a deed in form, and in some essential characteristics. The
validity of such an instrument, then, will depend upon whether it
is executed in the manner prescribed by the statute of wills: Dunn
v. Bank of Mobile, 2 Ala. 152; Shepherd v. Nabors, 6 Ala. 631;
Moser v. Moser, 32 Ala. 551, 556; Gillham v. Mustin, 42 Ala. 365;
Gomez v. Higgins (Ala.), 30 South. 417; Griswold v. Griswold, 148
Ala. 239, 121 Am. St. Rep. 64, 42 South. 554; Estate of Skerrett,
67 Cal. 585, 8 Pac. 181; Bright v. Adams, 51 Ga. 239; Dye v. Dye,
108 Ga. 741, 33 S. E. 848; Jones v. Loveless, 99 Ind. 317; Tuttle v.
Raish (Iowa), 90 N. W. 66; Reed v. ITazleton, 37 Kan. 321, 15 Pac.
177; Hazleton v. Reed, 46 Kan. 73, 26 Am. St. Rep. 86, 26 Pac. 450;
Poore v. Poore, 55 Kan. 687, 41 Pac. 973; Rawlings v. McRoberts, 95
Ky. 346, 25 S. W. 601; In re Lautenschlager's Estate, 80 Mich. 285,
45 N. W. 147; Sartor v. Sartor, 39 Miss. 760; Murphy v. Gabbert,
166 Mo. 596, 89 Am. St. Rep. 733, 66 S. W. 536; Pinkham v. Pink-
ham, 55 Neb. 729, 76 N. W. 411; Townsend v. Rackham, 143 N*. Y.
516, 38 N. E. 731; Babb v. Harrison, 9 Rich. Eq. Ill, 70 Am. Dec.
203; Jaggers v. Estes, 2 Strob. Eq. 343, 49 Am. Dec. 674; Armstrong
v. Armstrong, 4 Baxt. 357; Millican v. Millican, 24 Tex. 426; De
Bagligethy v. Johnson, 23 Tex. Civ. 272, 56' S. W. 95.
If, on the other hand, the instrument conveys a present vested
interest or right, it is a deed, although it may contain provisions
and terms ordinarily found in wills. An instrument having other-
wise the general formalities of a deed will be construed as a deed,
whenever it appears that the maker intended to convey any estate
or interest whatever, to vest upon the execution of the paper, though
the absolute enjoyment of the estate passed is postponed until the
death of the grantor: Adams v. Broughton, 13 Ala. 731; Thompson
v. Johnson, 19 Ala. 59; Stewart v. Sherman, 5 Conn. 317; Cumming
v. Cumming, '.', Ga. -ICO; Gull, vie v. Guthrie, 105 Ga. 86, 31 S. E.
40; Bowler v. Bowler, 17'^ [11. 541, 52 N. E. 437; Spencer v. Robbins,
106 Ind. 580, 5 N. B. 7Uli; Kelley v. Shimer, 152 Ind. 290, 53 N. E.
Estate of Williams. 19
238; Hinson v. Bailey, 73 Iowa, 544, 5 Am. St. Rep. 700, 35 N. W.
626; Ward v. Ward, 104 Ky. 857, 48 S. W. 411; Pennington v.
Lawson, 23 Ky. Law Rep. 1340, 65 S. W. 120; Exum v. Canty, 34
Miss. 533, 569; Hileman v. Bonslaugh, 13 Pa. 344, 53 Am. Dec. 474.
Effect of Reservation of Life Estate. — The fact that the grantor
reserves the possession, use, enjoyment, or profits during his life does
not make the instrument a will: Hall v. Burkham, 59 Ala. 349;
Abney v. Moore, 106 Ala, 131, 18 South. 60; Bunch v. Nicks, 50
Ark. 367, 7 S. W. 563; Graves v. Atwood, 52 Conn. 512; Jackson v.
Culpepper, 3 Ga. 569; Robinson v. Schly, 6 Ga. 515; Moye v. Kittrell,
29 Ga. 677; Bass v. Bass, 52 Ga. 531; Youngblood v. Youngblood, 74
Ga. 614; Seals v. Pierce, 83 Ga. 787, 20 Am. St. Rep. 344, 10 S. E.
589; Goff v. Davenport, 96 Ga. 423, 23 S. E. 395; Cates v. Cates, 135
Ind. 272, 34 N. E. 957; Saunders v. Saunders (Iowa), 88 N. W. 329;
Love v. Blauw, 61 Kan. 496, 78 Am. St. Rep. 334, 59 Pac. 1059;
Beebe v. McKenzie, 19 Or. 296, 24 Pac. 236; Dawson v. Dawson, Rice
Eq. 243; Swails v. Bushart, 2 Head, 561; Hart v. Rust, 46 Tex. 556;
Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 759; Martin v.
Faries, 22 Tex. Civ. App. 539, 55 S. W. 601. On the contrary, a res-
ervation of a life estate, and that only, indicates an intention on
the part of the grantor to pass the remainder interest immediately.
Worley v. Daniel, 90 Ga. 650, 16 S. E. 938. "It is true that a will
is a disposition -of property to take effect after death, but that defi-
nition of a will does not exclude the conclusion that a deed may be
the same in that particular. The former is necessarily so, but not
the latter": Horn v. Broyles (Tenn.), 62 S. W. 297, 304.
"The original tendency," observes Mr. Justice Lumpkin, in West
v. Wright (Ga.), 41 S. E. 602, "was toward holding that papers
indicating an intention to postpone enjoyment by the persons claim-
ing to be grantees till after the death of the persons executing the
papers should be classed as wills. This tendency in time yielded
to another, namely, that it was the sounder policy in case of doubt
to declare that the instrument was a deed, and thus make it effect-
ual, when holding it to be testamentary would, for want of the
requisite number of witnesses, render it nugatory. The true test,
of course, is the intention of the maker."
Importance of Maker's Intention. — When an unskillfully drawn in-
strument employs apt words of conveyance and of devise or bequest,
and mingles provisions peculiar to deeds with provisions peculiar to
wills, and besides postpones enjoyment or possession until after the
death of the maker, it becomes a matter of no inconsiderable diffi-
culty to ascertain whether it is a will or a deed. Necessarily, only
general rules can be formulated for the determination of the ques-
tion, since in practically every case the language of the paper is
different, and the circumstances under which it is executed are widely
varying. The true inquiry is as to the effect and operation the party
making it intended it to have. His intention is the controlling qaes-
20 Coffey's Probate Decisions, Vol. 5
tion and the ultimate object of inquiry. Did he intend it to be
ambulatory, revocable, and dependent upon his death for its con-
summation, or did he intend to create irrevocable rights and inter-
ests, theugh perhaps with their enjoyment postponed? If the instru-
ment cannot be revoked, defeated, or impaired by the act of the
maker, it is a deed; but if the estate, title, or interest does not pass
except in the event of his death and is subject to revocation during
his lifetime, it is a will. The form of the writing or the designa-
tion given it is of little consequence. If it passes a present interest,
it is a deed; if its operation is posthumous only, it is a will: Walker
v. Jones, 23 Ala. 448; Jordan v. Jordan, 63 Ala. 301; Trad wick v.
Davis, 85 Ala. 342, 5 South. 83; Crocker v. Smith, 94 Ala. 295, 10
South. 258; Moore v. Campbell, 102 Ala. 445, 452, 14 South. 780;
Kenney v. Parks (Cal.), 54 Pac. 251; Hester v. Young, 2 Ga. 31;
Dudley v. Mallery, 4 Ga. 52; Symmes v. Arnold, 10 Ga. 506; Hall v.
Bragg, 28 Ga. 330; Williams v. Tolbert, 66 Ga. 127; White v. Hopkins,
80 Ga. 154, 4 S. E. 863; Barnes v. Stephens, 107 Ga. 436, 33 S. E.
399; West v. Wright (Ga.), 41 S. E. 602; Stroup v. Stroup, 140 Ind.
179, 39 N. E. 864; Saunders v. Saunders (Iowa), 88 N. W. 329; Wall
v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Allison v. Allison, 4 Hawks
(N. C), 141; President etc. of Bowdoin College v. Merritt, 75 Fed.
480. In determining whether an instrument is a testament or a deed,
courts "will not consider what the maker believes it to be, but what,
in point of law, it is": Brewer v. Baxter, 41 Ga. 212, 5 Am. Rep. 530.
How the Intention is Ascertained. — Primarily, the intention of
the maker is to be gathered from the language of the instrument
itself. In doubtful cases, however, this does not preclude a con-
sideration of the facts and circumstances under which it was made
and which existed up to the death of the author: Sharp v. Hall,
86 Ala. 110, 11 Am. St. Rep. 23, 5 South. 497; Gage v. Gage, 12
N. H. 371; Robertson v. Dunn, 2 Murph. (N. C.) 133, 5 Am. Dec.
525. Moreover, if the instrument recites a consideration, describes
the land with particularity, contains covenants of title, is scaled,
nowledgcd, delivered, or recorded — these, or any one of them, is
a circumstance tending to show that the maker intended the paper
as a deed: Whitten v. McFall, 122 Ala. 619, 26 South. 131; Worley
v. Daniel, 90 Ga. 650, 16 S. E. 938; Owen v. Smith. 91 Ga. 564,
IS S. E. 527; Gay v. Gay, 108 Ga. 739, 32 S. E. 846; Cates v. Catea,
135 Ind. 272, 34 N. E. 957; Decker v. Decker, 93 Iowa, 204, 61 N. V.
921; Saunders v. Saunders (Iowa), 88 X. W. 329; Schmidt v. Reed,
132 N. Y. 100, 30 N. E. 373; Branch v. Byrd, 15 S. C. 142; Brown
v. Moore, 26 S. C. 1C0, 2 S. E. 9. So a reservation of a power
of revocation is a circumstance tending to rebut the idea of a will:
Hall v. Burkham, 59 Ala. 349. Nevertheless, instruments, acknowl-
d and recorded, have been pronounced testamentary: Stevenson
v. Snddleson, 13 B. Mon. (Ky.) 299; Carlton v. Cameron, 54 Tex.
72, 38 Am. Rep. 620; Hannig v. Hannig (Tex. Civ. App.), 21 S. W.
Estate of Williams. 21
695; Grigsby v. Willis (Tex. Civ. App.), 59 S. W. 574. The non-
delivery of a writing is a circumstance favoring it as a will: Nichols
v. Chandler, 55 Ga. 369; Eagsdale v. Booker, 2 Strob. Eq. (S. C.) 348.
Writings of Doubtful Import. — If a writing cannot have operation
as a will, but may as a deed, then, in doubtful cases, it will be
made effective by construing it to be a deed: Dismukes v. Parrott,.
56 Ga. 513; West v. Wright (Ga.), 41 S. E. 602; Love v. Blauw, 61
Kan. 496, 78 Am. St. Eep. 334, 59 Pac. 1059; Jacoby v. Nichols, 23
Ky. Law Eep. 205, 62 S. W. 734. Conversely, if a paper cannot
operate as deed, it will be given effect as a will when this can fairly
be done: Sharp v. Hall, 86 Ala. 110, 11 Am. St. Eep. 23, 5 South.
497; Abney v. Moore, 106 Ala. 131, 18 South. 60. But an instrument
intended to operate as a deed is not entitled to probate as a will, if
inoperative as a deed: Edwards v. Smith, 35 Miss. 197. However,
it is well said by Mr. Justice Brannon, in Lauck v. Logan, 45 W.
Va. 251, 31 S. E. 986: "If it were an open question, I would sa)f
that the law ought to give a paper not so executed as to be good as a
will effect as a deed if good as a deed, and a paper so executed so
as not to be good as a deed effect as a will, if good as a will."
Illustrations of Wills, — The following instruments have been held
testamentary in character: "Due at my death to J. the sum of $2,500,
from the general fund of my estate, as a gift. The condition of
the above bond or obligation is such that whereas, for the fidelity
and obedience, as well as the natural love and affection that I
have for my daughter J., I donate, in the above manner, what I
design for her at my death": Johnson v. Yancey, 20 Ga. 707, 65
Am. Dec. 646; a writing in form a deed conveying all the property
of which the maker may die seised or possessed: Brewer v. Baxter,
41 Ga. 212, 5 Am. Eep. 530; Ward v. Campbell, 73 Ga. 97; or an
undivided interest therein: Watkins v. Dean, 10 Yerg. (Tenn.) 320.
31 Am. Dec. 583. Compare Eobey v. Hannon, 6 Gill (Md.), 463; an
instrument executed by a husband, reciting a gift of land to his
wife to take effect on his death, and reserving the right to sell
or dispose of it during his life, in which case the paper to be void: Ellis
v. Pearson, 104 Tenn. 591, 58 S. W. 318; a writing in form a deed
and styled and acknowledged as such, but containing a provision
"that this deed is not to take effect until after my death," coupled
with a direction that the beneficiary should pay the maker's debts,
and have only the remaining property: Cunningham v. Davis, 62
Miss. 366; a conveyance reserving a life estate in the grantor, with
the power of management and disposition, and the proceeds of any
sale to his own use, upon his death, if the land remained unsold, to
go to his children: Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864; a
conveyance, in the usual form, "to commence after the death of both
of said grantors," and providing that "it is hereby understood and
agreed between the grantors and the grantees that the grantee shall
have no interest in the said premises as long as the grantors or either
22 Coffey's Probate Decisions, Vol. 5.
of them shall live": Leaver v. Gauss, 62 Iowa, 314, 17 N. W. 522;
and an instrument filled out on a printed warranty deed form,
reciting a consideration of one dollar and natural love and affection,
conveying, besides two tracts not here involved, "all our right, title,
and interest in" our homestead, "should we not sell or dispose of the
same before death," the grantors remaining in possession up to their
death: Wren v. Coffey (Tex. Civ. App.), 26 S. W. 142.
Illustrations of Deeds. — The following writings have been held
not testamentary in character, but deeds: An instrument in the form
of a warranty deed except for these words: "Conditions of this deed
is such as said party of the second part that this land shall not be
encumbered in any way, or this deed shall be void. The party of
the first part is to hold said property his lifetime": Bevins v.
Phillips, 6 Kan. App. 324, 51 Pac. 59; or except for a clause, "To
hold the above-described premises to the said B. P. W. of the second
part, his heirs and assigns, to be his at my death and the death of
my wife, E. W.": Wynn v. Wynn, 112 Ga. 214, 37 S. E. 37$; an
instrument in form and name a deed, acknowledged and delivered,
whereby, for a consideration of five dollars and love and affection
the grantors "do grant with general warranty," a tract of land, closing
with this clause, "but it is hereby distinctly understood and stipu-
lated that this deed shall take effect and be in full force and effect
immediately after the said L. shall depart his life, and not sooner":
Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986; a deed "not to take
effect during my lifetime, and to take effect and be in force from
and after my death": Wyman v. Brown, 50 Me. 139; a deed "not
to take effect and operate as a conveyance till my decease": Abbott
v. Holway, 72 Me. 298; a conveyance delivered but not to take
effect or be recorded until the death of the grantor, without the cre-
ation of an intermediate estate to support it: Shackleton v. Sebree,
86 111. 616; Harshbarger v. Carroll, 163 111. 636, 45 N. E. 565; Latimer
v. Latimer, 174 111. 418, 51 N. E. 548; a writing by which the maker
deeds land to his wife for life, remainder to his grandson, which
provides that "this deed shall not take effect" until the grantor's
death, he "to have and keep full possession of said farm during his
life": Phillips v. Thomas Lumber Co., 94 Ky. 445, 42 Am. St. Eep.
367, 22 S. W. 652; deeds executed by a husband and wife, conveying
b to the other his or her separate property, and delivered to a
third person, with instructions to record that of the one dying first:
Kinney v. Parks (Cal.), 54 Pac. 251; an instrument conveying prop-
erty "to take effect, as far as regards handing over of property, at
my death," and reserving the right to revoke the instrument during
life, and providing that "placing the same among my papers is in-
ti oded by me as a delivery of said property at my death": Wall
v. Wall. 30 Miss. 91, CI Am. Dec. 147; a conveyance subject to a
life estate in the grantor, the payment of his debts, the expenses of
h,s last ' ss, and certain bequests: Powcra v. Scharling (Kan.),
Estate op Williams. 23
67 Pac. 820. See, also, Bromley v. Mitchell, 155 Mass. 509, 30 N. E.
83; a paper in form a will, the disposition of property therein made
taking effect at once, the consideration being the care and support
of the maker for life: Goad v. Lawrence (Ky.), 68 S. W. 411; Dreis-
bach v. Serf ass, 126 Pa. 32, 17 Atl. 513; and a deed executed in
expectation of approaching death, delivered and intended to take
effect immediately and unconditionally: Brown v. Atwater, 25 Minn.
520; Diefendorf v. Diefendorf, 8 N. Y. Supp. 617, 29 N. Y. St. Kep.
122; Billings v. Warren, 21 Tex. Civ. App. 77, 50 S. W. 625.
A conveyance executed by a married woman, intended to be oper-
ative after her death and therefore testamentary in character, and
never delivered, cannot be admitted to probate as a will, though her
husband joined in the execution of the conveyance, and there was
attached thereto the certificate of a notary by him signed, certifying
to its acknowledgment. The signatures so placed on the deed can-
not be considered as the signatures of subscribing witnesses: Gump
v. Gowans, 226 111. 635, 117 Am. St. Eep. 275, 80 N. E. 1086.
Writings in the Form of Trust Deeds. — Many instruments settling
property contain provisions that become operative only after the
death of the settler. Notwithstanding this, however, if they are exe-
cuted and delivered to take immediate effect, passing a present inter-
est to the trustee, they are deeds of trust and not testamentary dis-
positions: Massey v. Huntington, 118 111. 80, 7 N. E. 269; Smith v.
Baxter (N. J. Eq.), 49 Atl. 1130; Lines v. Lines, 142 Pa. 149, 24
Am. St. Eep. 487, 21 Atl. 809; Lightfoot v. Colgin, 5 Munf. (Va.)
42; President etc. of Bowdoin College v. Merritt, 75 Fed. 480. If
there is no restriction in a trust deed as to when it shall go into
effect, presumptively it takes effect at once, and hence is not testa-
mentary: Brace v. Van Eps, 12 S. D. 191, 80 N. W. 197.
An instrument executed by a father, under seal and recorded,
conveying property to two of his sons, to be managed by them, for
the support of himself and wife during life, and at death to be
divided among all the children, and also providing for the sup-
port of an imbecile child and the education of another, is not a will
but a deed of trust: Eobinson v. Ingram, 126 N. C. 327, 35 S. :E.
612. So a trust deed purporting to convey property to trustees at
the time of its execution is not rendered testamentary because of
reservations, trusts, and conditions concerning the use of the prop-
erty during the lifetime of the grantor: Kelly v. Parker, 181 111.
49, 54 N. E. 615. But an instrument purporting to convey to a
trustee the undivided half of all property which the maker might
leave at his death, after the payment of his debts, to be held for
the heirs of his wife, reserving the control and disposal of the prop-
erty during life, and providing it should be void if he survived his
wife, is testamentary in character: Eoth v. Michalis, 125 111. 325,
17 N. E. 809.
24 Coffey's Probate Decisions, Vol. 5.
Instruments Partly Testamentary. — An instrument may be in part
a contract or deed and in part a will. The fact that some of its pro-
visions may have the force of a contract and may become operative
during the maker's life does not necessarily deprive the remainder
from being testamentary and admissible to probate: Taylor v. Kelly,
31 Ala. 59, 68 Am. Dec. 150; Burlington University v. Barrett, 22
Iowa, 60, 92 Am. Dec. 376; Reed v. Hazleton, 37 Kan. 321, 15 Pac.
177. And a conveyance need not be homogeneous. It may be a
deed in part and a will in part. There is nothing to prevent one
in the same instrument from selling or giving certain property to
another and willing other property to the same individual: Eohinson
v. Schly, 6 Ga. 515, 52S; Powers v. Scharling (Kan.), 07 Pac. 820.
In the Matter of the Estate of LUIGI DAMA, Deceased.
[No. 6972; decided January 30, 1892.]
Will — When Both Olographic and Attested. — A testamentary docu-
ment in the handwriting of the testator and having subscribing wit-
nesses may be proved either as an olographic or as an attested will.
Expert in Handwriting — Who Qualified as. — One who has made a
specialty in penmanship at college, who has taught it for many
years and to thousands of pupils, and who gives evidence of his
proficiency in the presence of the court, may be regarded as an
expert in the simulation and imitation of handwriting.
Expert Witnesses — Weight of Evidence. — Numbers do not neces-
sarily count in the case of expert witnesses, any more than in other
cases. It is quality, rather than quantity, which the law regards, so
that the mere fact that numerically the force of sheer experts is
stronger on one side than on the other is not a matter of moment
in itself.
Expert in Handwriting — Counsel as. — If the attorneys in a case
involving the alleged forgery of a will show themselves possessed
of science and skill in handwriting, their argument may be regarded
as expert testimony, relieved of the constraint of cross-examination
and free from the burden of an oath.
Expert Testimony — Credibility — Character of the Witness. — Where
an expert on handwriting gives an opinion contrary to what he
expressed before the trial, the eourt said: "The validity of scientific
deduction is not to he tested by the tergiversation of scientist in
his moral Conduct outside ll 1 " record; his individual deceit and
duplicity in dealing with clients may be established or admitted,
Estate of Dama. 25
but the scientific value of his evidence is dependent upon the logical
connection between premises and conclusion."
Handwriting — Evidence of Genuineness. — The strongest evidence of
the genuineness of handwriting is the testimony of the alleged writer,
and next to this is the testimony of a witness who saw the instrument
executed and is able to identify it. There are, however, other and
different modes of proof.
Handwriting — Evidence of Genuineness. — In determining the ques-
tion of authorship of a writing, the resemblance of characters is
not the only test. The use of capitals, abbreviations, punctuation,
paragraphing, erasures, interlineations, idiomatic expressions, orthog-
raphy, underscoring, composition and the like, are all elements upon
which to form the judgment.
Handwriting — Genuineness — Evidence of Dissimilitude. — Conclu-
sions drawn from dissimilitude between disputed writings and au-
thentic specimens are not always entitled to much consideration; such
evidence is weak and deceptive, and of little weight when opposed
by evidence of similitude.
Expert in Handwriting — Value of Testimony. — Evidence of the
genuineness of an instrument, based upon a comparison of handwrit-
ings and the opinion of an expert, is of low order and of an unsatis-
factory character.
Expert Witnesses — Bias — Manner of Retaining. — The present sys-
tem of retaining expert witnesses is discussed and criticised as not
tending to unbiased testimony.
Expert Witnesses — How Should be Regarded. — Under the present
system of retaining expert witnesses, the true position for them to
take is that of persons to whom a question has been presented, and
who, having given a certain opinion, are retained by the parties in
whose favor they have given it, to carefully prepare the opinion,
with the reasons therefor, and state it before the tribunal before
which the case is tried. Experts should be considered and treated
as advocates, rather than as witnesses.
Physician as Witness in Will Contest. — It seems that in a will
contest a physician who attended the testator in his last illness may
testify that the testator stated that he executed the will in question.
Letters of Administration — Proceedings to Obtain. — The proceed-
ings in an application for letters of special administration, which
under the general practice are somewhat informal, have been modified
by the court by requiring the application to be made in open court
and upon notice.
Will — Conflicting Testimony of Witnesses. — Where there are three
witnesses to a will, its probate will not be denied or revoked because
one of them, against the positive testimony of the others, fails or
refuses to authenticate his signature or the execution of the inscru*
meat.
26 Coffey's Probate Decisions, Vol. 5.
Will — Conclusiveness of Witnesses' Testimony. — On the contest of
a will the testimony of a subscribing witness is not conclusive either
way, nor does the law presume that he is either more or less truthful
than others, though it does not presume that he had, when he signed,
full knowledge of what he was doing.
Will — Death of Subscribing Witness. — In case of the death of a
subscribing witness to a will, his attestation, when proved, is prima
facie evidence that all was done as it should have been.
Will — Credibility of Witnesses. — When a will is contested, the case
is open for general witnesses, and when the testimony is all in, each
witness is credited according to the impression he leaves of candor
and intelligence, and not according to his being, or not being, an
attesting witness.
Will — Falsehood or Forgetfulness of Witness. — Neither the failure
of memory nor the corrupt or false swearing of attesting witnesses
will be allowed to defeat a will, if its due execution can be show,n
by other testimony.
Will — Witness Who does not Subscribe. — In case of a will contest
a person who was present at the execution of the testament, but who
is not a subscribing witness, may give evidence of a valuable char-
actef.
Will — Proof of Forgery. — Where a will is contested on the ground
of forgery, the contestant is not called upon to indicate the forger,
but he is compelled to establish by a preponderance of evidence the
charge laid in his complaint, while it is not incumbent on the re-
spondent to do more than hold the balance.
Will — Probate Sustained Against Heirs. — The probate of a will
in this case is sustained as against contesting heirs with whom the
testator was not on friendly terms, he being an eccentric old music
master, and having given practically his entire estate to a married
woman for the cultivation of her voice, who was not related to him,
but who had been his pupil.
Application to revoke probate of will.
Joseph P. Kelly and II. I. Kowalsky, for the petitioners.
Russell J. Wilson, Henry C. Hyde, R. H. Lloyd and Frank
J. French, for the respondents.
Timothy J. Lyons, for certain Italian legatees.
BTATEMBNT OF TIIE CASE.
COFFEY, J. On Jann.-iry 3, 1889, Sarah Randall, by her
attorneys, Joseph P. Kelly, Esq., and II. I. Kowalsky, Esq.,
Estate of Dam a. 27
filed in this court a petition praying for the revocation of the
probate of the Will of Luigi Dama, in which she set forth
that Luigi Dama died intestate in San Francisco on the
twentieth day of January, 1888, being at that time a resi-
dent of that city and county and leaving estate therein of
real and personal property; that at the time of his death
he was a widower, his wife, "Wealthy B. J. Dama, having
predeceased him on the sixth day of November, 1882,
in the said city and county; that she left surviving
her Luigi Dama, her husband, and Sarah Randall, her
mother, the contestant; also brothers and sisters — Ed-
ward W. Randall, of Bath, Maine, aged fifty-eight years, Ben-
jamin Randall, Boston, Massachusetts, aged forty-five years,
Frank H. Randall, aged thirty-two years, and Jennie Forbes,
Boston, Massachusetts, aged forty-six years; that at the
time of the death of Luigi Dama he left property which
was acquired by the joint labor of himself and his spouse,
Wealthy, and that during his marriage he acquired all of the
property of which he died seised; that he had no kin living
at the time of his death, and that the only heir at law to his
estate was the contestant, Sarah Randall; that his estate,
situated in California and Massachusetts, was valued at about
$35,000; that on the thirtieth day of January, 1888, an in-
strument was filed in this court purporting to be the last
Will and Testament of said Luigi Dama, accompanied by a
petition by one Sara Barker Smith, wherein it was alleged,
among other things, that the said instrument was the last
Will and Testament of said Luigi Dama, deceased, and pray-
ing that the same be admitted to probate as such and there-
after, on the twenty-ninth day of February, 1888, the said
paper was admitted to probate; that said paper was not
signed, written or executed by said Dama, nor was the same
subscribed to by Jules Matthieu, No. 214 O'Farrell street,
San Francisco, Henry Godard, No. 222 O'Farrell street, nor
Antonio Bellini, No. 222 'Farrell street, nor were the names
that are now subscribed thereto, purporting to be the names
of said witnesses, written or subscribed to by them, nor was
the same signed by the said Luigi Dama, in the presence of said
23 Coffey's Probate Decisions, Vol. 5.
witnesses, whose names are signed thereto, nor were the names
of said witnesses subscribed thereto by them in the presence
of said Dama or in the presence of each other; that the
name "Luigi Dama" was not written by him nor subscribed
thereto by some person in his presence or by his direction;
that the names of the subscribing witnesses, Mathieu, Godard
and Bellini, were not signed by them or subscribed thereto by
some person in their presence or by their direction ; that the
said alleged Will was not written by the said Dama, nor
at or by his direction, but that it is false, fraudulent and
forged, and not his last Will and Testament; that according
to said alleged Will one Sara Barker Smith, wife of Julius
Smith, is named as the executrix without bonds, and also the
principal devisee and legatee thereunder; and the contestant
therefore prays for a revocation of the Will, because of the
premises.
On January 22, 1SS9, a demurrer was interposed by two
of the legatees in the Will, namely, the Reale Stabilimento
dell' Annunziata di Napoli and Andrea Manzo, and at the
same time an answer of general denial was filed on behalf
of the same legatees; this demurrer was subsequently over-
ruled; and on January 14, 1889, an answer was filed by the
executrix of the Will, Sara Barker Smith, which was subse-
quently on the twenty-third of January, 1889, superseded
by an amended answer traversing all the material allegations
of the contest.
On December 17, 1890, while the trial was in progress, the
death of the contestant was suggested and a continuance
thereupon had until January 5, 1891, when a legal representa-
tive, James C. Pennie, administrator, was substituted and
the trial resumed.
The trial began on the twentieth of November, 1890, and
proceeded with many interruptions from various causes until
June 2:5, 1891, when it was submitted for the decision of
tie- court, a jury having been theretofore expressly waived in
open court.
Estate of Dama. 29
On September 24, 1891, the submission was by stipulation
set aside and on September 25, 1891, the cause was resubmitted
for judgment and decision.
(The trial occupied in all two hundred and sixty-four hours,
and the argument in summing up by counsel, sixty-eight ; in
all, the time consumed was three hundred and thirty-two
hours. The judge's notes of evidence and argument com-
prise two hundred and seventy-three pages of legal cap.)
On Friday, in the forenoon, January 20, 1888, Luigi Dama
died at his residence, 317 Mason street, San Francisco,
and on Saturday afternoon, January 21, 1888, one R. W.
Burtis applied for and obtained letters of special admin-
istration upon the estate of said Dama, which estate, ac-
cording to the petition filed by said Burtis, consisted of real
and personal property, the value and particular character
of which he was unable to state; the petition also recited
that the papers and documents belonging to said deceased
were supposed to be in his box in the Safe Deposit Com-
pany; and that it was necessary that some person should
be immediately appointed to collect, preserve and take care
of the same; that there would be considerable delay in pro-
curing general letters of administration, and that the said
estate required immediate care and attention in order to pre-
serve the same from loss and injury; that said Dama was
unmarried and left no heirs or relatives in California; that
the petitioner had made due search and inquiry for the pur-
pose of ascertaining if the deceased left a Will, and from
the information received the petitioner believed a Will to
be among the decedent's papers in the Safe Deposit Company.
This petition was signed by R. W. Burtis, petitioner; and the
name of Frank J. French, attorney for petitioner, appears
subscribed to the same. On the same day an order was made,
entered and filed, appointing said Burtis special administrator
of the estate of Luigi Dama, deceased, and directing special
letters upon his giving a bond in the sum of $1,000, which
bond, signed by Frank J. French and B. F. Jellison and
30 Coffey's Probate Decisions, Vol. 5.
executed before George T. Knox, notary public, on the same
day, was approved by the judge on that day ; whereupon
special letters of administration were issued to said R. W.
Burtis and he entered upon that office.
On January 30, 1888, a petition was filed, signed by Sara
Barker Smith and Frank J. French, her attorney, which set
out that she was a resident of San Francisco, California, of
lawful age ; the petition recited the facts of the death and
residence of Luigi Dama, and that the decedent left a Will
dated at San Francisco, the eighth day of May, 1887; that
said Will was left in the possession of the petitioner by the
testator after its execution, and she believed and alleged it to
be his last Will and Testament, and the same was filed simul-
taneously with the petition and presented for probate; that
the Will was an olographic Will, it being entirely written,
dated and signed by the hand of the testator himself; and
it was also attested by three subscribing witnesses, whose
names were signed at the end of the Will and under the
signature of said testator; that the names and residences of
said witnesses were as follows, namely: Jules Mathieu, No.
214 O'Farrell street, Henri Godard, No. 222 O'Farrell street,
Bellini Antonio, No. 222 O'Farrell street; that the petitioner.
Mrs. Sara Barker Smith, was named in said Will as execu-
trix thereof, without bonds, and she consented to act in that
capacity ; that said Dama left him surviving no wife, children
or child, and no issue of any deceased children or child ;
that he left no heirs residing in the state of California, and
that the names, ages and residences of his heirs were un-
known to the petitioner, but if there were any heirs of the
decedent, the petitioner believed that they resided in Italy;
that the legatees and devisees were as follows, namely: The
Stabilimento dell' Annunziata, Naples, Italy, to which is
given and bequeathed $2,000; Andrea Manzo del fu Simone,
N.iples, Italy (age unknown to petitioner), to whom is given
$1,000, but in case of his decease this bequest to go to the
Stabilimento before named; the property contained in the
Estate of Dama. 31
safe deposit at Boston, Massachusetts, and described in the
fourth paragraph of the Will was bequeathed to Mrs. Sara
Barker Smith, the petitioner, residing in San Francisco, Cali-
fornia ; the property contained in said safe deposit and de-
scribed in the fifth paragraph was desired by the testator
to be sold and the amount brought by it to be disposed of by
the executrix for a charity purpose as she think the best ; the
sixth paragraph of the "Will provides that the property men-
tioned in said paragraph and all the property and estate of
the testator shall go and belong to said Mrs. Sara Barker
Smith for the purpose of further study and development of
her vocal organs and cultivation of the voice. The petitioner
was unable at the time of filing her petition to state the
probable value and character of the property of said decedent,
further than that the personal property consisted of money in
bank and in the hands of R. W. Burtis, special administrator,
amounting to about eight hundred dollars, household furni-
ture, piano, jewelry, and other personal effects; that the real
property consisted of unimproved real estate in San Fran-
cisco, San Mateo, and Tulare counties, California, mentioned
in the sixth paragraph of the Will ; that decedent left personal
property in Boston, Massachusetts, described in the fourth
and fifth paragraphs of the Will, the value and character of
which the petitioner was unable to state ; that all of the estate
left by decedent was separate property; that at the time of
the execution of the Will, May 8, 1887, the testator was of
the age of sixty-four years, or thereabouts, and was of sound
and disposing mind and in all respects competent to make a
Will.
The Will, which was admitted to probate by this court,
after the proper preliminary procedure, on the twenty-seventh
day of February, 1888, is in words and figures as follows:
"Know all men by these presents, that I Luigi Dama
of San Francisco, state of California, being of sound
mind, but feeling the uncertainty of life, do hereby make
my last Will and Testament. After my just debts, Doctors
32 Coffey's Probate Decisions, Vol. 5.
bills, and funeral expenses shall be paid, I give and be-
queath.
"First.
"I desire to have my body embalmed, and buried by
the side of my dear lamented wife, Wealthy B. J. Dama,
in Bath, Maine, and that to be paid out of my Estate.
"Secondly.
"I do hereby give and bequeath two thousand dollars
(#2000.00) to the Stabilimento dell' Annunziata, Naples,
Italy, to be paid in United States gold coin.
"Thirdly.
"I give and bequeath the sum of one thousand dollars
($1,000.00) to Andrea Manzo del fit Simone, Naples, Italy,
but in case of his desease, the same sum to go to the Sta-
bilimento dell' Annunziata, Naples, Italy, above named.
"Fourthly.
"I desire that all the jewelry contained in the Safe De-
posit in Boston, Mass. Watch, gold chains, Diamonds
studs, (two pairs) with solitaire diamonds each a breast pin
with nine diamonds, and three pearl studs, also eleven (11)
Government Bonds of United States of America, Nine of
One thousand dollars each ($1,000.00) and two of Five
hundred each ($500.00) and a ring with a large solitaire
diamond. All those are my property, which I bequeath
to Mrs. Sara Barker Smith, living at present in San Fran-
cisco, State of California.
"Fifthly.
"Id the above mentioned safe deposit in Boston, Mass.,
contains also a bracelet ornamented with diamonds
and inside a portrait- A ring also ornamented, with dia-
monds and an Emerald stone in the middle of it -These
two articles belong to my dear beloved wife Wealthy
15. J. Dama which were bequeath to me by her. I desire
these two articles to be sold, and the amount of what it will
Estate of Dama. 33
bring to be dispose of, by the Executrix Mrs. Sara Barker
Smith for a charity purpose, as she think the best.
"Sixthly.
"In the safe deposit in San Francisco State and
County of California, contained valuable papers, land
contract between Wm. T. Cummins and myself, Luigi
Dama Four deeds of land bought from R. R. Co: of one
hundred and sixty acre's each paid one-fifth by myself
Luigi Dama- Also the deed of the land on Jackson
street, and Pacific Avenue Sixty eight feet and nine
inches front on either of the streets, and two hundred
fifty five feet in depth — bought from Mr. Davis for the
sum of fourteen thousand and five hundred dollars ($14-
500.00) paid cash on the first June one thousand eight
hundred and eighty five, and also eleven shares (11) of
American Watch Co: of Waltham, Mass -These and. all
of my property and Estate of whatever sort, or descrip-
tion, and where so ever situated shall go, and belong to
the above mentioned Mrs. Sara Barker Smith, for the
purpose of further study and development, of her vocal
organs, and cultivation of the voice.
"Seventhly.
"I appoint Mrs. Sara Barker Smith Executrix of this
Will and Testament without bonds- Written this Sunday
the day of May eight of the year One thousand eight
hundred eighty seven, entirely by myself, without influ-
ece from any one.
"San Francisco May the eighth of the Year One thousand
Eight Hundred and Eighty seven LUIGI DAMA
"Witness Jules. Mathieu.
"No. 214. O'Farrell. Street
"Henri Godard. 222. O.Farrell. Street
"Bellini Antonio. 222 Ofarrelle"
Prob. Dec, Vol. V — 3
3-4 Coffey's Probate Decisions, Vol. 5.
[This is fac-simile of original Will.]
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Estate of Dam a. 35
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Estate op Dama. 37
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The order admitting this paper to probate may also be
here inserted in extenso for convenience of future refer-
ence, if need be :
Order Admitting Will to Probate.
The petition of Sara Barker Smith, heretofore filed
in the above-entitled matter, praying for the admission
to probate of a certain document filed herein, purporting
to be the last Will and Testament of Luigi Dama, deceased,
to be appointed executrix of the said last Will and Tes-
tament of said deceased, and that letters testamentary
thereon be granted to said petitioner, coming on regularly
to be heard on the thirteenth day of February, 1888, and
due proof being then made that notice had been duly
given of the time appointed for proving said Will and for
hearing said petition according to law, to all parties
interested, the further hearing of said application and
the proofs in support thereof was regularly continued un-
til the twenty-seventh day of February, 1888, at 2 o'clock P.
M., of that day, at which time the following named witnesses
were sworn and examined, viz.: William T. Cummins, R.
W. Burtis, Mrs. Helen M. Cushman and Columbus Water-
house, and the applicant, Sara Barker Smith, having also
been sworn and examined; and from the testimony of said
witnesses it satisfactorily appearing to this court, that
said document is the last Will and Testament of said
Luigi Dama, deceased; that it is an olographic Will, and
was entirely written, dated and signed by the hand of the
38 Coffey's Probate Decisions, Vol. 5.
testator himself, on the eighth day of May, 1887, the time it
bears date, and that the said testator at the time of the ex-
ecution of the same was of sound and disposing mind, and
not acting under duress, menace, fraud or undue influence;
that said testator died on the twentieth day of January, 1888,
being a resident of the city and county of San Francisco, in
the state of California, at the time of his death, and leaving
estate of the value and character as follows: Unimproved
real estate in the city and county of San Francisco of
the value of about fifteen thousand dollars ($15,000), and
unimproved real estate in the counties of Tulare and
San Mateo, and in this state, and certain personal prop-
erty in the city and county of San Francisco, the value
of which is unknown, and also personal property in the
city of Boston, commonwealth of Massachusetts, the value
of which is unknown.
And no objection made thereto:
It is ordered, that the said document heretofore filed,
purporting to be the last Will and Testament of said
Luigi Dama, deceased, be admitted to probate as the last
Will and Testament of said deceased; that said Sara
Barker Smith be and she is hereby appointed executrix
thereof, and that letters testamentary thereon issue to said
petitioner upon taking the oath as required by law, it being
expressly provided in said Will that no bonds be required of
said petitioner.
Dated February 27, 1888. J. V. COFFEY,
Judge.
Proceedings on Original Probate, February, 1888.
This paper so probated might have been proved in either
one or both of two ways : as an olographic Will (sections 1309,
L940, 1943, Code of Civil Procedure), or as an attested Will
(sections L308, 1935, Code of Civil Procedure).
It was propounded in both ways — as an olographic Will
and also as an at tested Will (see Contestant's Exhibit
P — 16) ; but it was proved, in«the first instance, only as an
olographic Will.
The mailer of original probate first came on for hear-
ing on February 13, 1888, Frank J. French appearing as
Estate of Dama. 39
attorney for petitioner, T. J. Lyons for the Italian con-
sul, and Joseph. Naphtaly for the public administrator;
ex-Judge M. A. Edmonds was also present representing
heirs at law, informally, but not putting in any authen-
ticated appearance; and there were called as witnesses,
Henri Godard, Jules Mathieu and Antonio Bellini, whose
names appear as subscribing witnesses to the Will,
the last named of whom refused to testify that the sig-
nature ''Bellini Antonio" was made by him; he then
testified that he had never before seen the paper offered
for probate, and that the name "Bellini Antonio"
appended to the attestation clause was not written by
him; he had, however, signed a paper in Dama's house,
at his request, together with Godard and Mathieu, with
whom he went to the house, 317 Mason street, upon the
invitation of Dama for the purpose of witnessing a paper,
but this propounded instrument was not the paper they
witnessed; it was a paper with a stamp on it; the stamp
was an impression on the paper itself; he had never
signed more than one paper, and this was not that paper;
and the words "Bellini Antonio 222 farrelle" were
not in his handwriting — of this he was positive; and at
the request of the court he wrote his name a number
of times on a sheet of legal cap paper (see Respondent's
Exhibit 30) ; when Dama went to the witness at 222 O'Far-
rell street he told him that he had a paper that he
wanted him and two others to sign, and afterward the
witness procured the two other persons, Godard and
Mathieu, and they went to Dama's house and signed as
stated, on a Sunday, sometime about June or July, 1887.
On the same occasion, February 13, 1888, that this tes-
timony was taken, Henri Godard testified that he had
signed the paper offered for probate, as a witness, one
Sunday about half-past seven or eight o'clock in the
evening, he thought it was about May, 1887 (the date of
the paper was May 8, 1887) ; he did this at the request
of Dama and in his presence and in the presence of
Jules Mathieu and Bellini Antonio, who also signed at
the desire of Dama, who himself first signed his own
name; there was also another person present, a friend
40 Coffey's Probate Decisions, Vol. 5.
of Bellini, whose name Godard did not recall ; Dama
spoke throughout the transaction in French, which was the
language used at the time by all the persons present upon that
occasion.
Jules Mathieu, the third subscribing witness, testified
that he signed a paper at the request of Dama, and in
presence of Godard and Bellini, who also signed at the
same request, but he did not see Dama sign, nor did he
see anything on the paper except the word "Witness"
above the place where he signed; the paper was so folded
and held down by Dama that Mathieu saw nothing
above the place where he signed except the word "Wit-
ness." Dama held the paper down on the top of the piano
until the three witnesses signed. Dama said to Mathieu,
"Will you please put down your name here?" indicating
the place, and said the same to Godard and Bellini; there
was another person present, an Italian named Dellasanta.
Dama did not say that the paper was his Will nor allude
to it in any way, but Bellini told the witness after leaving
the house that it was a Will and witness guessed that that
was the object of their being wanted there by Dama. The
witness Mathieu testified also that prior to going to Dama's
house Bellini had told him that the purpose of their going
there was to sign a Will.
After this testimony was taken on the thirteenth day
of February, 1888, the return day for the hearing of the
application for probate of the paper propounded, a con-
tinuance was had; and on February 27, 1888, at 2 o'clock
P. M., the matter was again brought before the court, the
counsel appearing being ex-Judge Myrick and F. J.
French for the petitioner, and T. J. Lyons, for the Italian
consul; at this hearing the testimony went to establish
the olographic character of the instrument, the witnesses ex-
amined in that behalf being Wm. T. Cummins, R. W.
Burl is. Mrs. Helen M. Cushman, Columbus Waterhouse, Sara
Barker Smith, and after hearing the testimony of these wit-
nesses the court found that the paper propounded was an
olographic will, entirely written, dated, and signed by the
hand of the testator Luigi Dama on the eighth day of May,
Estate of Dama. 41
1887, the time it bears date, and admitted it as such to pro-
bate.
What Contestant Undertook to Establish.
In his opening statement counsel for contestants claimed
that he would be able to show that the names of the wit-
nesses to the alleged Will were not written by them nor
at their direction, and that he would establish by wit-
nesses familiar with the writing of deceased that the in-
strument in dispute was not in his handwriting, and also
by expert evidence beyond a peradventure of doubt that
the alleged Will was a forgery; and that the beneficiary
was a stranger to the deceased, not related by blood or
connection, by consanguinity or affinity with or to him,
and that the alleged object of his bequest was not such as
he naturally would have designed, and contrary to his oft-
repeated estimate of the legatee's capacity; the counsel as-
serted his ability to demonstrate by proof that this alleged
Will was forged; and if he should not be able to iden-
tify the perpetrator in person, counsel claimed that the bur-
den would rest upon those who had caused this paper to be
probated.
The Single Issue : Forgery.
There is but one issue in this case : FORGERY. This
issue applies not only to the Will itself, but to certain
other papers which are so connected with its fabrication
that the evidence which applies to one must, for the most
part, affect the others. These papers are briefly described
as the "Will"; the "Altered Will"; the "Long Memoran-
dum"; the "Draft of the Long Memorandum," and the
"Short Memorandum."
These papers stand or fall together; if any one of them
be false, the others cannot be true; and conversely. If a
forgery were committed in this case, as alleged by the con-
testant, the author must have manufactured not only the
paper probated as a Will, dated May 8, 1887, but also the
papers denominated the "Altered Will," dated November 1,
1885 (Respondent's Exhibit 3) ; the "Long Memorandum"
(Respondent's Exhibit 2) ; the "Draft of the Long Memo-
42 Coffey's Probate Decisions, Vol. 5.
randum" (Respondent's Exhibit 31) ; and the "Short Memo-
randum" (Respondent's Exhibit 1).
A Fact Beyond Dispute.
One thing seems to be certain in this case: There was a
paper signed by Luigi Dama in May, 1887, at his dwell-
ing-house, 317 Mason street, San Francisco, in presence of
four persons, Jules Mathieu, Henri Godard, Antonio Bel-
lini, and Gaetano Dellasanta; the three first named signing
as subscribing witnesses, and the fourth — Dellasanta — not
signing for the reason stated in his testimony, which I abridge
here:
Dellasanta testified that he knew Antonio Bellini who
lived at 222 O'Farrell street in May, 1887, and also knew
Jules Mathieu, who kept a bar at 221 in that street, and
also Henri Godard, who lived at 222 in the same street;
he knew also Luigi Dama, whom he first saw at Mathieu 's
bar; he met Bellini, Godard, and Mathieu in Dama's
house, 317 Mason street, in May, 1887 ; Bellini asked him
to go there with him, that he was to sign a Will; Dama
took out of a basket a big envelope, and a paper out of it,
and he said that was a Will that he called them up to
sign ; he took out a pen and he said, after he wrote his
name, to Jules Mathieu to whom he gave the pen, to
write his name; then he gave the pen to Godard and he
signed, and then to Bellini, who wrote his name "Bell-
ini Antonio"; they wrote their addresses after their
names, and Dama explained what it was, and at the same
time said to Dellasanta that there was no necessity of his
signing as three witnesses were enough; the AY i 11 was
placed on the top of a piano when it was signed; Della-
santa was standing near the piano and looked at the
paper after it was signed, but he could not read the paper
the way it was folded up; after Bellini wrote, everybody
made a remark-, the way he signed his name; the paper
here in question- the alleged and probated Will — looked
to the witness Dellasanta to be the .same paper that Dama
signed in May, 1887. when Jules Mathieu, Henri God-
ard, and Antonio Bellini signed, on one Sunday even-
Estate of Dam a. 43
ing in May, 1887, at about 8 o'clock; but he would not
swear that it was the same paper; it looked to him to
be the same, but he was not judge enough to swear that
no man could imitate the paper; this witness Dellasanta is
an Italian, and a cook in the cafe of the Occidental Hotel
(see pages 108 and 109 of the judge's manuscript notes).
Dellasanta was a witness called by and for respondent, and
was examined and cross-examined on Tuesday, March 17,
1890*.
The Question to be Decided.
The question then is, Was the paper admitted to pro-
bate on the 27th of February, 1888, and now sought to be
revoked and annulled as false and forged, the paper exe-
cuted by Luigi Dama and witnessed by Mathieu, Godard and
Bellini, in the presence of Dellasanta?
The Evidence of the Subscribing Witnesses.
Counsel for contestant first undertakes to establish that
it was not the same paper, and that the names of the
witnesses to the probated instrument were not written by
them, nor at their direction; and in support of his case
introduced Antonio Bellini, a native of Italy, fifty years
of age and fifteen years a resident of San Francisco, who
knew Luigi Dama, and who worked for him two or three
hours every day, cleaning the house for him, a three-story
brick house with a large garden in front, 317 Mason street;
and in answer to the question of contestant's counsel: "Q. I
will ask you to look at the fourth page of a paper marked
'Will of Luigi Dama, filed January 30, 1888,' and say if that
signature 'Bellini Antonio' is yours? said: A. No, I never
write that; never write my name that way. Never saw that
paper before I saw it in this court here about two years ago,
February, 1888."
Upon cross-examination Bellini testified that he now (No-
vember 20, 1890) lives and works at Lo Presti's restaurant,
203 Larkin street; formerly lived at 222 O'Farrell street for
six years; knew Henri Godard and Jules Mathieu; on May
8, 1887, was with them in Dama's house; witness wrote his
name on a paper but it was not this paper (at this point of
44 Coffey's Probate Decisions, Vol. 5.
the examination the witness gave specimens of his writing
in response to request of the court, writing the lines "Bellini
Antonio 222 O'Farrell st." six times sitting at the clerk's
desk, and three other lines, standing at the corner of judge's
desk: See lines 3 to 11 inclusive of the judge's manuscript
notes of testimony).
Witness testified, after writing these specimens, that the
paper he signed in Dama's house, while he was standing up,
rested on the top of a piano ; Jules Mathieu and Godard were
there at the time and also signed ; it was a long paper, doubled,
about the size of that paper (indicating the roll in which the
Will, Proof and Certificate are preserved) ; Mr. Dama stood
on one side of the piano, and Mathieu, Godard and himself,
Bellini, on the other side ; they could walk around the piano,
Dama was behind the piano, the witnesses in front ; Gaetano
Dellasanta was in the room at the same time, standing at the
end of the piano, to the left of Dama; Dama asked every-
body to put his name down, but did not ask Dellasanta;
witness Bellini was in the house often working, cleaning the
house; Dama had a good many pupils, some ladies; when
witness Bellini came up to this court about two years ago
Godard and Mathieu were with him ; witness being shown the
will admitted to probate on February 27, 1888, says that he
never saw that paper before this morning (i. e., the morning
of November 20, 1890) ; he remembers being in court as a
witness two years before; and remembers that the judge
showed him a paper and his name was there and and he said
it was not his writing; but he never saw this paper (the al-
leged and probated Will) before this morning; (witness was
testifying on cross-examination in the afternoon of Novem-
ber 20, 1890) he ivas not shown that paper; it was a new
paper, "not old rags like that"; never saw that paper before
to-day (i. e., November 20, 1890) ; that is not the paper the
judge shenvrd him; his signature was not in the same place,
it was nearer the bottom of the page, about four fingers from
the bottom.
Upon his redirect examination, the witness Bellini said
that it was nearly iliree years Bince he was examinnl
in this court; this is not the paper shown to him then
Estate of Dam a. 45
(referring to the alleged and probated Will) ; it was a
clean paper; it was not that paper anyhow (indicating the
probated paper, Will admitted February 27, 1888) ; at this
point of the witness' testimony, an interpreter, Antonio Lo
Presti, was called in to assist, and through him Bellini related
how he came to be a witness at the time of the hearing of the
application for probate, February 13, 1888. The judge showed
him a paper at that time; that is the paper, but with this one
difference, that it was then fresher and newer than now. Wit-
ness indicates the probated Will.) The paper he signed in
Luigi Dama's house had a stamp on it, but the color he does
not remember; his name was signed near the bottom (the
witness marked where — the relative position — on a blank
sheet of legal cap paper) . Mathieu signed first, then Godard,
then Bellini ; witness did not see Dama sign ; he said it was
a testament; he said to the three of them, "if you please sign
your names," that it was a testament; after that the four,
Dellasanta and the witnesses, left together; witness Bellini
did not notice anything of Dama's habits, only worked there
three or four months. Upon the recross-examination witness
Bellini repeated that Dama said that it was his Will; the
paper probated being again shown to witness, he reiterated
that he had never seen that paper before; there was a stamp
or seal on the paper but he could not remember the color,
whether it was black or red or blue ; the probated paper being
again shown to witness, he said. "I do not know that paper,
never saw it oefore to-day; it was a similar paper ; that is the
paper."
Upon the next morning, November 21, 1890, the services
of an interpreter were again called into requisition and the
contestant's counsel was permitted by the court to resume his
redirect examination of the witness, Bellini, and the Will
probated February 27, 1888, being again shown to witness he
was asked:
"Q. Is that the paper that you signed at Professor Dama's
house the night that Jules Mathieu and Henri Godard ac-
companied you?" And he answered:
"A. No. That is not my signature, nor any part of it. I
did not sign that."
46 Coffey's Probate Decisions, Vol. 5.
The witness was then examined again by respondent's
counsel and admitted that he did on the day before testify
that the word "Antonio" and "222 farrelle" was in his
handwriting and that he said also "I swear it"; but he was
excited and he did not clearly comprehend it, but now he
understands it better. Witness Bellini was at this point re-
quested to put on his spectacles and look at the Will and
signature "Bellini Antonio, 222 farrelle"; and having done
so, he said : " I see that now as plainly as I did yesterday and
say, it is not my signature."
GODARD.
On the same day, November 21, 1890, the surviving sub-
scribing witness, Henri Godard, was called by consent, out
of the regular order, for respondent and testified that at the
time of testifying he resided in Dallas, Texas; he was a mar-
ried man, an instrument maker and musician; formerly lived
in San Francisco for about three years; was in San Fran-
cisco about three years ago ; lived at 222 'Farrell street ;
knew Luigi Dama ; also knew Jules Mathieu, who was a
musician; also knew Antonio Bellini; went to Dama's house
at his request with Mathieu and Bellini to sign a Will as wit-
nesses; the paper shown to witness, Will admitted to probate
February 27, 1888, he says was the paper which he signed as
a witness at Luigi Dama's request; it was signed on the top
of a piano, a square piano; Dama had his hand on the paper
;:ik1 he asked the witnesses to sign; Godard saw Mathieu
sign ;iihI Antonio Bellini; Dama asked the witnesses to put
their addresses after their names; there was another person
in the room, an Italian, whose name Godard did not then
know, but afterward ascertained to be Dellasanta; the wit-
nesses were all facing the piano; Dama was of sound mind;
Dama spoke to Godard on the street in French telling him
he was going to make his testament; Godard wrote his name
all at once ami only once, he was sure of that; he saw Luigr
Dama sign liis name. (Witness at request of cross-examining
counsel took the paper — the alleged and probated Will — to
the light of the courtroom window and after scrutinizing it
6aid:) "I am sure thai that is flic paper." Witness then by
request gave several specimens of his handwriting seated at
Estate of Dama. 47
a table and desk, and also standing at side of judge's desk in
same relative position as when signing as witness to Will on
top of piano. (See judge's notes of testimony, pages 8 and
9, also Contestant's Exhibits "K," "L," and "M.")
At the time witness Godard was requested to go and sign
the Will he was in an Italian restaurant with Bellini and
Mathieu, and Dama came in ; after a while Bellini and Dama
spoke Italian with each other at 222 O'Farrell street and
then Dama came over to witness Godard and said, "I am get-
ting old and want to make a donation to some one and want
to make a Will," and requested Godard to act as a witness;
then they all proceeded to the house, Dama and Godard in
advance of the others; they entered the house, 317 Mason
street, and Jules Mathieu sat down at the piano and after
playing a while and trying his voice they shut up the piano
and Dama took a bunch of keys and opened a closet and
took out some papers from it ; the Will in probate being shown
to witness, he said that there (pointing to signature) was his
name; he knew that and that was all he had to say; he could
not remember what Dama said; Dama was talking all the
time; Dama was very careful, and after putting the paper
down on the top of the piano he requested the witnesses to
sign; Dama handed the pen first to Jules Mathieu and then
to the others, and after signing the professor asked each to
put after his name the address; the witness Godard was sure
that Bellini wrote his name "Bellini" before "Antonio."
Evidence of the Waterhouses and the Randalls as to Hand-
writing of Dama.
Among the witnesses on the hearing of this contest called
in behalf of contestant was Columbus Waterhouse, who is
described by counsel, without controversion, as a pioneer of
California, a Mason, whose character is equal to that of the
highest in the fraternity, a man who in the commercial com-
munity and in society is the peer of the most exalted (see
page 252 of the judge's manuscript notes), president of the
People's Home Savings Bank, trustee in Pacific Bank, dealer
in carriage and wagon materials on a most extensive whole-
sale scale, resident here, where he has reared his family, from
the earliest days.
48 Coffey's Probate Decisions, Vol. 5.
Columbus Waterhouse knew Luigi Dama well; their ac-
quaintance began in 1884 or 1885 ; Mr. Waterhouse made the
acquaintance of Professor Dama through his daughter, now
Mrs. D. S. Dorn, having been a pupil of the professor ; he also
became a pupil in the professor's system of voice develop-
ment or vocal culture ; Professor Dama considered that system
as the only one of any account, others being valueless; Mr.
Columbus Waterhouse knew the handwriting of Professor
Dama from having seen him write — the Will admitted to pro-
bate February 27, 1888, being shown to the witness, he said
he had very grave doubts of it ; in the opinion of Mr. Water-
house it was woi the handwriting of Mr. Dama; Professor
Luigi Dama was a careful, punctilious man, of perfectly sound
mind, very close in money matters; the witness was a mem-
ber of the Mission Lodge, Free and Accepted Masons; also
of the Golden Gate Commandery, Knights Templar, in both
of which the witness Waterhouse presented Dama's petition
for membership, he was already a Master Mason ; the witness
Waterhouse knew whether Dama felt kindly toward his fam-
ily in the east, the Randalls; Dama was very bitter toward
them and had been for three months before he left for the
east ; upon his return he declared himself more kindly toward
them; the witness Waterhouse saw Dama for the last time
about the middle of December, 1887, before the witness left
for Mexico, which was on the 21st of that month ; the family
of witness and Dama interchanged visits; they were on mutu-
ally very friendly terms; Dama visited the Waterhouses a
great many times ; when the professor went east with his wife
in 1884 or 1885 he left with witness Waterhouse a bundle of
papers, but witness had no knowledge whether his safe de-
posit key was in them or not; a paper shown to witness, Pe-
titioner's Exhibit No. 1, "Short Memorandum," the witness
expresses his opinion that it is not in the handwriting of the
deceased Dama; this paper the witness never saw before the
time of testifying (November 28, 1890, at 12 o'clock me-
ridian). Dama told witness Waterhouse that he had some
bonds Imt had disposed of them; Professor Dama told him
that Mrs. Smith had no chest power whatever and would never
make much of a, .singer; Dama said that as the result of her
Estate of Dama. 49
taking lessons that she had improved considerably and also
she had improved in health; witness Waterhouse thought that
Professor Dama went east in the fall of 1884, but was not
sure; when Dama returned he took portions of the papers
from the witness' safe; the witness was not present at the
time the professor took the papers from the safe ; upon cross-
examination the witness being shown the Respondent's Ex-
hibit No. 31, "Draft of Long Memorandum," said that the
side opposite the file-mark was in the handwriting of Dama ;
as to the other side, witness said that was written at a differ-
ent time and with a different pen, but the witness thought
it was in the handwriting of Dama; he thought, also, that
Respondent's Exhibit No. 2, the "Long Memorandum," was
Dama's writing. The witness at a later date in his examina-
tion (Monday, December 1, 1890, 11 A. M.) corrected an
error into which he had fallen at an earlier stage of his ex-
amination, as to the date of the beginning of his acquaintance
with Dama; the correct date was in 1880, and Dama's first
visit to the east with his wife was in 1881. A paper shown
to witness, Respondent's Exhibit No. 23, he identified as a
"Will written by Dama, or at least a copy made by him of the
olographic Will of his wife which was refused probate on
account of the omission of a date. The witness said that he
should not call Respondent's Exhibit 3, the "Altered Will,"
the handwriting of Dama nor any part of it ; but the witness
had not offered himself as an expert, and did not consider
that anything he should say would be a test. He thought that
Respondent's Exhibit No. 4, the blank form of Will, had many
features of Dama's handwriting, but if it were his it must
have been copied from some other article; he thought, how-
ever, that it was the handwriting of Dama ; the paper shown
to witness, attached to the Randall deposition, marked
"Comm'rs Ex. A-a," was written by Dama without a doubt.
The witness Waterhouse was friendly with Dama up to the
time of his death; witness thought that Dama went east in
May and returned in August, 1887 ; that was the time when
Dama told witness that he had sold his bonds; Dama simply
said, "I've sold my bonds"; the friendship of witness for
Dama continued until his death, and it was reciprocated to
Prob. Dec, Vol. V — 4.
50 Coffey's Probate Decisions, Vol. 5.
all appearances, but witness could not say that he respected
Dama's memory as a friend and as a gentleman, from reports
of his remarks related to him, and witness had assumed the
truth of the reports; the deceased professor made no state-
ment about his making a Will, except that he said he had
made a Will ; this remark was made in 1886 ; this was after
the Dorn visit; witness Waterhouse started for Mexico on
January 15, 1887, then he had ceased taking lessons from
the professor, after his return he began again taking lessons
in 1887, witness went to Mexico again in December, 1887,
and did not subsequently take any lessons, witness returned
from his first trip February 18th and within a week resumed
lessons with the professor and continued until Dama Avent
east in August, 1887 ; witness did not as a fact cease on March
19, 1887 ; there were three or four weeks of interruption, but
he resumed again ; the first trip of witness to Mexico was be-
gun December 15, 1886, not January 15, 1887, this last date
was an error of witness. Witness Waterhouse began taking
lessons in vocal culture not to become a singer, but because
of his health ; he was troubled with asthma and thought the
lessons would benefit his ailment ; his hour of instruction was
very often 11 o'clock in the morning; it was sometimes after
Mrs. Smith's hour, sometimes after Mrs. Cummins'; most of
Dama's pupils were there for their health, some went there
for their voice, to learn singing. Witness, on being examined
as to what he testified to at the time of the probate of the
Will (February 27, 1888), said that he had at that time said,
"I think the signature is his, the other looks rather strained";
but the witness now (December 1, 1890) believed that it was
not Damn's writing, from examinations he has since made
of the writings of the deceased, among them letters in evi-
dence to his brother Ben Randall ; several papers presented
to witness (Respondent's Exhibit 33, 34, and 35) he pro-
nounced to be in the handwriting of the deceased Dama.
(See judge's manuscript notes of evidence, pages 16-23.)
The Boston depositions of the Randalls, so far as they
touch the handwriting of the alleged Will, affirm as matter
of opinion thai it is ool that of Luigi Dama, although Jennie
Forbes says that "it is a very good representation" and
Estate of Dama. 51
Benjamin Randall detects in the photograph "a standard re-
semblance but it is not the same." (See judge's manuscript
notes of evidence, page 23.)
Frederick A. Waterhouse, a brother of the witness Colum-
bus Waterhouse, connected with the establishment of "Water-
house & Lester," of which firm his brother is sole constituent,
was acquainted with Luigi Dama ; first met him in 1880 and
took lessons in vocal music from him ; Dama was a very care-
ful man in his habits ; sometimes Dama seemed to be ' very
liberal and sometimes close ; Dama claimed that his was the
only true method of teaching vocal music, and all other sys-
tems were wrong; witness Frederick A. Waterhouse was
familiar with the handwriting of Dama, and from his remem-
brance of his writing he pronounced the alleged Will to be
not in the handwriting of the deceased Luigi Dama. Witness
Frederick A. Waterhouse was administrator of the estate of
Wealthy B. J. Dama, deceased wife of the professor; he had
not seen the alleged Will since it was admitted to probate.
The Evidence of the "Experts."
PROFESSOR F. O. YOUNG.
If any man deserves to be classified as an expert in hand-
writing that man is Frederick Osborne Young, and with ref-
erence to his history and qualifications it may be well to note
briefly an epitome of the history of his evolution as an ex-
pert penman, as told in his testimony: Professor Young de-
scribes himself as a teacher and executer of penmanship since
1873; he was born in Maine, and was graduated at Bryant's
Business College, Manchester, New Hampshire, the college of
Gaskell, the celebrated calligrapher. Young's object in go-
ing to school was to make a teacher of himself in all common
school branches, and since 1873 he has made a specialty of
penmanship ; it was his ambition to excel in writing ; being
left-handed, having no right hand, it was difficult for him
to become expert, but he succeeded in excelling in writing
and also in drawing; he became a teacher and taught thou-
sands, he could not say how many he had had, perhaps from
fifteen to twenty thousand pupils under instruction in the
course of years, and he had opportunities abundant to sup-
52 Coffey's Probate Decisions, Vol. 5.
plement by observation and experience his scientific and theo-
retical attainments; in the art of penmanship he has given
unusual proofs of proficiency in the presence of the court ;
and in capacity of imitation and simulation he is undoubtedly
an adept. So much for his qualifications. He is an expert
in his profession; "a person instructed by experience": Law-
son's Expert and Opinion Evidence, 426. "A person who,
by virtue of special acquired knowledge or experience on a
subject presumably not within the knowledge of men gen-
erally, may testify in a court of justice thereon, as dis-
tinguished from ordinary witnesses, who can in general testify
only to facts": Century Dictionary.
Professor Young says that there are certain habits that
persons take on in writing, such as position, lifting the pen,
making letters and combinations, and slope; "slope" is one of
the professor's strong points, "the main thing in writing is
the slope"; in this case Professor Young had submitted to
him several writings for his examination, and had had them
for say a month for purpose of comparison and test; he had
fully and carefully examined all the papers submitted to him
that he was informed were the genuine writings of Luigi
Dama, and from that examination he had formed an opinion
as to the genuineness of the alleged Will ; and after examining
that instrument and also the Respondent's Exhibit 1, "Short
Memorandum," his opinion was that they were not in the
handwriting of Luigi Dama, basing that opinion upon an ex-
amination and comparison with fourteen writings represented
to him as Dama's authentic compositions; the first feature
in the formation of his opinion was the difference in the slope
of the writing; "slope" is not an accident; it is a habit al-
most impossible to change; the slope was in this case enough
to determine that the alleged Will was not genuine, but it
was not the only point; in reference to the paper Respond-
ent's Kxhibit 2, "Long Memorandum," he could not say ill
whose handwriting it was; he did not think it was in Dama's;
in his opinion it was copied from an original; but he had a
doubt about it; and classed it in the same handwriting as the
Will ; as to the paper marked Respondent's Exhibit 31, " Draft
of Long Memorandum," Professor Young thought it was
genuine, except the word "Memorandum" on the second page
Estate of Dama. 53
seemed odd to him, and he did not think it had Dama's slope ;
as to the paper called the ' ' Copy of the Wealthy B. J. Dama
Will," he had never seen it before it was presented to him
on cross-examination (December 4, 1890), but he should say
it was in the handwriting of Luigi Dama ; there was one let-
ter there which he had not found elsewhere, the small letter
"p" in the words " presents" and "page"; those resemble
the writing in the alleged Will ; this paper ("Copy of Wealthy
B. J. Dama Will") does not in general resemble the alleged
Will more than other papers he had seen ; usually the more
a man writes the more cramped his hand becomes, but with
an expert it is different; an expert's muscles become more
relaxed as he proceeds, so that on the third page of the Will
the fact of the writing being a little freer than on the pre-
ceding page convinced the professor that it was not written
by Dama, but by a better writer. Witness gave a number
of interesting illustrations to support his opinion that the al-
leged Will was not the emanation of the mind and hand of
Luigi Dama.
The professor said that in his examination of the alleged
Will and Respondent's Exhibit No. 1 and the genuine writings,
he had noted or noticed some resemblances, but he was prin-
cipally concerned in detecting the differences ; his engagement
as an expert in this case was not dependent on the result of
the trial; he would not have it that way, but he was paid
according to the time consumed in the employment. A sum-
mary of the notes made by Professor Young on the handwrit-
ings examined by him in connection with his testimony in this
contest is here appended, as furnished by him at the time of
the trial :
Professor Young's Summarized Statement.
"After a long and careful examination of Mr. Dama's ad-
mitted genuine handwriting covering a period of about fifteen
years, and especially letters written by him just before and
after the date of the Will, and finding no material differences
in the slope and general character, formation, style, and hab-
its of his writing, and on the contrary finding the Will, a
copy of the Will, and a memorandum exhibited to prove the
genuineness of the Will, were in a much less sloping hand,
and had many and material differences in character, forma-
54 Coffey's Probate Decisions, Vol. 5.
tion, style, and habits, I feel convinced that Mr. Dama did
not write the Will, copy of Will, or memorandum. The writ-
ing shows on the face of it the character of imitation, instead
of a natural hand. In tracing the two handwritings I notice
many points of difference that can hardly be explained. I
seem to feel two different identities, and some good observers
see the same thing in the character of the writing when com-
paring the two. Mr. Dama had one way of holding his pen
and one position of his hand in relation to the paper and let-
ter or letters which he was making; as his slope and habit of
lifting the pen shows it inclined him to write downhill; as
shown by the beginning of his letters when the name of the
place was not written on the top line but above, he usually
wrote downhill ; also shown in his signature at the end many
times. The forger shows an opposite result ; his slope shows
the hand to be on the paper a little to the right of Mr. Dama's,
hence his inclination to slope less and write uphill, as shown
in 'Bellini' in signature of Will, and his habit of lifting the
pen oftener, also shown in slope of first two strokes of L and
D in signatures to Will, copy, and memorandum, these strokes
slope less than Mr. Dama's.
"The following are some of the many differences I made
note of, viz. :
In Exhibits 1, 2, 6, 7, 8, 0, 11, and '7G Will, Dama's
writing, there are 10G2 loops (1 h k b & f) above the
line, and 100 of them are open at the top thus, £, the
remainder are closed like t, thus £ .
In the Will, 280 are open in 31'5?
In the copy of Will, OSS are open in 301.
In the Mem., 3S ase open in 3S.
Total 65G are open in 714.
Duma's, 100 are open in 1062.
" In the above Exhibits and Mrs. Dama's Will thero
are 330 h's and all closed at base, thus 72/, but one which
is made by lifting the pen tlius^^y, pg. 4.
Estate of Dama. 55
In the Will, 12 h's open in 116 /£/ (remainder, h.)
In copy of Will, 58 h's open in 122 -^ "
In Mem. 5 h's open in 12 /^ « "
75 h's open in 250/L " "
In Dama's, 1 h open in 330 fa/ (remainder, h)
closed.
I also looked over nine pages of Dama's manuscript, &
4 pages of the same recopied, and two pages of the old
Will form, also catalogue of music, and did not find it
made thus,-/t, , with the habit of lifting the pen and
separating the base.
"In the same Exhibits that I looked for h, I also
looked for p and never found it open, thus, /O, but
always closed thus, fo , i. e. made without lifting pen,
In the Will '12 were open ( fO)\n 30.
In the copy of Will 11 were open ( fy ) in 37.
In the Mem? 3 were open ( 19 ) in 5.
Total ... 26 were open ( 4q ) in 72.
I did not count Dama's but there were hundreds all
closed. In connection with the p and h it is well to
speak of the $*n&ll letter a, the last part of which is
similar to the ktst part of p and h. In the copy of the
Will it is disconnected. 5 times in the following words,
viz, California, Maine, nine, nine, and think, thus, jv
and in the Will in Godard's first name, Henri, it occurs.
Neither of these habits were Dama's; if it occurred with him
it was accident, not the result of habit.
"It was Dama's habit to connect the combination
'am,' wherever it occurred in a word. In 44 cases
where he used 'am,' 42 were connected, and 1 of those
disconnected was a skip of the pen evidently. In the
copy of the Will there are 13 disconnected in 20, and
56 Coffey's Probate Decisions, Vol. 5.
evidently from habit. In the Will they are all connec-
ted, and now the question, why this sudden change of
an established habit ?
"In Daina's letters, the letters th when used together
in a word were generally connected or made without
raising the pen thus,/^^ In 150 used, 18 were dis-
connected thus, -c rls:
"In the Will 57 were disconnected in 03, and in copy
of Will 55 were disconnected in 01.
"If I may be allowed the illustration, I should say
that the small letter "s" in the forgeries is generally well
made like a plump dame, the fullness extending well up
to a short neck, — while Dama'sare inclined to be "long
necked," " slab-sided '* and when fullness occurs it pre-
vails in the abdominal regions.
" Small "s" is a difficult letter to make right, owing to
the short curve of the down stroke, and right there is
where the difference occurs in the two writings.
"The first part of the small letters d, g, and q, together
with the "a," as a principle, are made in the forgeries
more like the small letter "u," i. e., cut off the top of the
first line thus, &- ; while in Dama's writing this principle
is more like the form of the small letter o, the first down
stroke slopes more and the principle is not so wide.
The small letter d in the forgeries has too much same-
ness; I refer to the stem or finishing stroke. It has the
appearance of being traced, or copied. This fact occurs
in many other cases.
" The small letter "z" is made twice in the '85 Will,
thus, y- , and in his letters it was made without the last
stroke or cross, thus, 'jr
" SHORT MEMORANDUM."
" The general slope is less than in Dama's. There are
38 loops above the line and all are open. Dama would
have made them nearly all closed.
Estate of Dama. 57
"There are 12 h's and five are disconnected at the
base, thus, fa , — Dama would have connected them.
There are 5 p's and 3 are disconnected thus, j^ , —
Dama would have connected all thus, Jb . Small
"i" is not dotted in the word Will, — a mistake a forger
would make, Dama would haye dotted it. Influence is
spelled "enfluence." Dama spelled it influece at times
but I never noticed it " en." There are 5 th's all discon-
nected thus, ^{v , — Dama would have connected 4 at least.
The pen was lifted in first down stroke of g ^Compare
with Gumpel's "a" in California, Judge's notes;) in the
word 'signed' (6th line) Dama never would have done it.
Capital G in the word " God " is unlike Dama's and pen
was also raised which indicates forgery. Dama made
his thus, if , and never raised pen.>
"The capitals " g " and " m </ " in San Francisco are
new styles of letters introduced. I found such an " </* "
used once. It was written on Dama's general memoranda of
his pupil's time for lessons, and was used in the name Mrs.
Sara Barker Smith. It was written above the headlines or
on the top margin, and a very significant fact is that it runs
uphill at about the same degree that 'Bellini' does. The
F should be compared with the same letters in 'Farrell
street' in signatures of Godard and Mathieu and the 'G'
with Godard 's initial.
"The signature to this memoranda is unlike Dama's, espe-
cially in style and shade of capitals L and D.
"Compare small t's with same in 'street' in Godard 's
address. 1st t : It starts high up, and while doing this
compare r in same word with r's in "Will, etc. Also
compare 'r' in Mathieu 's address in the word 'street'
with r in Godard 's name; now compare the crossing of
58 Coffey's Probate Decisions, Vol. 5.
the first / in Godard's street with crossing of last-"^
in Mathieu's, then compare these with same in the
word "presents," 1st line of Will, after. 5th line, and
"Street," 2nd page.
Look at 1st stroke in small g in " Luigi," pen was
lifted thus, & , but the connection was made so that it
appears one stroke.
The capital " L " starts withTTesltaXion and too high
and the first stroke of it & "D" do not slope enough and
the appendage at the end is connected with less slope
than Dama's. Compare it with the same on Godard's
name.
"The general expression of these signatures is of one
handwriting."
The Expert Doctor R. U. Piper.
Dr. R. U. Piper is an expert whose methods of reaching
results in the ascertainment of authenticity and the discovery
of forgery are different from those of Professor Young. His
methods are best explained in his own diction, after premising
a statement of his claims to be considered an expert in this
branch of science: Doctor Piper is a physician by profession,
for twenty years, however, engaged as an expert in handwrit-
ing; he has used the microscope since he began practice as
a physician over twenty years ; he is a man over seventy years
of age and has been called as an expert perhaps hundreds
of times in cases in court in many of the United States and in
Canada; his method of examination is the "Baconian" or
inductive; he had seen the alleged Will several times and had
made examinations of it in the courtroom and also examined
photographs of it; he made copies and diagrams of letters
(chirographic characters) and compared them letter by letter
and point by poinl from what is called "Short Memorandum,"
Respondent's Exhibil 1, and did the same with other docu-
ments, letters purporting to emanate from Luigi Dama, which
he used ;>•> genuine handwritings in order to compare them
wiih the alleged Will and as a result of this examination ami
comparison came to the conclusion that the alleged Will and
Estate of Dama. 59
the "Short Memorandum" were not in Luigi Dama's hand-
writing; this opinion resulted from his examination of those
papers and comparison from his materials and according to
his methods; Dr. Piper thought that the imitation on the Will
ivas a very good one; the letter "d" seemed to be a type in
the disputed documents. After giving numerous details, Dr.
Piper read a mathematical resume or recapitulation of his
reasons for the conclusion that the alleged Will was a forged
paper, which is here inserted in connection with the foregoing
and following abbreviation of his testimony:
Dr. Piper's Mathematical Resume.
"The Will purports to have been written by the testator
himself, and I have therefore used the body of the paper as
well as the signature for the purpose of this examination.
"The question involved is, as to the genuineness of the
document, it being claimed by one party to be genuine, while
the other claims it to be fraudulent.
"For the purpose of making an investigation of the ques-
tion involved in the case, that is, as to the genuineness of the
document, I have made enlarged copies of some of the letters
and also of some of the dots over and after the letters, which
go to make up the Will, as also the signature. I have further
made enlarged copies of letters and of dots, over and after
letters from documents, used as standards for comparison in
this examination, these documents being in the handwriting
of the said Luigi Dama. These enlarged copies of letters
and dots from the two sources I have placed side by side with
each other so that they can be compared, and thus a cor-
rect deduction be made in the premises. Without such en-
largement, and side-by-side arrangement of the letters and
other characters which go to make up written documents, I
hold it impossible to come to a just conclusion in many of
such cases. It is certainly impossible to carry in the mind
the characteristics of letter-forms which constitute them the
property of different individuals ; at least to carry in the mind
the characteristics of a sufficient number of these forms
through the comparison of which we should be warranted in
coming to any conclusion in a given case. I have made over
three hundred (300) of these letters and characters in the
60 Coffey's Probate Decisions, Vol. 5.
present case, nor do I deem these any more than sufficient
data on which to base my conclusions. Think of them in
their true size scattered through the documents from which
they have been gathered, and how certainly it will be seen
that no one possessing an ordinary memory could carry one-
tenth of them in his mind so as to make such a comparison as
would warrant any sort of a conclusion whatever.
"I have made the diagrams containing the enlarged written
forms — tables — and refer to them under this name in my
exposition. Table 1 contains an enlarged copy of the signa-
ture to the disputed Will, as also a like enlarged copy of a
genuine signature to a letter to 'Miss Harris' dated July 14,
1887, written just two months and six days after the Will pur-
ports to have been written. Here the fraudulent signature,
as I am warranted in calling it from proof already obtained
and which I shall adduce hereafter, is a pretty good imitation
of the genuine ; so much so that I do not notice any essential
difference, with the exception of one fact, which would cer-
tainly seem to be very significant, that is, that in the name
'Luigi' in all of the genuine ones that I have seen, the first
'i' after the '1-u' is separated from the 'g,' while in the
one on the Will and Altered Will (second name on the Table)
it is indistinctly joined to the *g.' The principal object of
this table was to show difference in slope. Differences remain-
ing being in favor of respondents.
"In the genuine documents I have numbered marked 'E.
S. 1' up to 'E. S. 11,' as in all the others in my possession
containing the name, the first 'i' is separated from the 'g.'
This being the case, one would hardly fail to be convinced that
that fact of separating the letters of his name at this point
\\;is a fixed habit with the writer. Especially is this signifi-
cant as in the letter already alluded to dated July 14, 1887,
so near t lie date of the Will, it is as marked a fact as in all
the others which I have examined.
"The letter 'd': It will be seen that there exists a marked
distinction between the genuine and the disputed 'd's' which
can be seen without magnification. I have, however, taken
a number of them from various paris of the original Will
;ls well as from some six genuine documents, and have brought
Estate of Dama. 61
them together in an enlarged form on Tables 2, 3, 4, in order
that they might be seen together, and thus be in a proper po-
sition to be fairly compared with each other. There are some
one hundred and thirty of these letters (d) in the disputed
"Will, all without exception made after one type with scarcely
any marked variation. All of them terminate in a thickened
end which only varies from a distinct rounded and blunted
form to one somewhat more elongated and pointed. The let-
ters are remarkably alike in size with two or three exceptions,
and the length and thickness of both the upper and lower
curves or hooks are remarkably uniform. I have copied on
the Tables twenty-six (26) of these letters from the Will,
and fifty-four (54) from genuine letters; these last have been
taken from six different documents so as to get at the average
facts in this respect.
"It will be seen how widely they differ in almost every re-
spect from these same letters in the Will.
"They vary very much in actual thickness and length of
line constituting the inkstroke, this last being more than twice
the length in some cases than in others, on the same docu-
ment — e. g., figures 10-11, Table 2, and figures 13-14 on
Table 4. The final ends of the genuine letters terminate in
various directions, in contradistinction to the disputed ones,
which always look downward. In some cases in the genuine
letters, the terminal end forms almost a right angle with the
ascending stroke ; in others this part of the letter turns di-
rectly upon itself and crosses the ascending stroke. Further,
with the exception of a few instances, the genuine letter ta-
pers into an elongated point at the terminal end. On Table
3, figure 14, is a marked exception to this, and also figure 21,
Table 4. It would almost seem that this letter in the Will
might have been copied from some genuine letter like one of
these. What is very strange about the whole matter and what
of itself alone separates the Will from the genuine documents
is the striking uniformity of these letters in the Will, one
hundred and thirty in number (130) compared with the great
variety in this respect in the genuine letters. There are
twenty-two (22) of these letters (d) in the document marked
'E. S. 1,' letter to Miss Harris dated July 14, 1887, which
62 Coffey's Probate Decisions, Vol. 5.
I have alluded to before. This letter, it will be remembered,
was written two months and six days previous to the date of
the "Will. Every one of the twenty-two 'd's' in this are
made after the forms of those seen on Table 4, second line.
"It certainly seems to me preposterous to claim that a
party could (not to say would) so entirely change their hand-
writing in so short a space of time as is here seen to exist
between the letter d in the Will and the same letter as seen
in the genuine document.
"And the same idea may of course be repeated in regard
to this letter as seen in the other ten documents (genuine)
which I have used as standards in this examination.
"The second line of those letters on Table 4 was written
within two months and six days of the alleged time of writ-
ing the Will, and here without any conceivable motive or rea-
son, is seen an entire change in the formation of this letter.
"And here, too, is seen an entire change of the habit of a
lifetime as we may suppose, exhibited in the (documents)
letters I have copied from, covering some four years of time.
Such an immediate change of habit in this respect I think
may be set down at once as being almost, if not quite, impos-
sible. And then again, what could be the motive of such
change on the part of one writing an honest paper? We
could easily see why this uniformity of style in this letter, as
well as of others in this document, might be adopted by an
imitator, as it would not be difficult for an expert to copy and
follow a single form so as perhaps to defy detection, but to
follow the great variety of forms of the various letters seen
in the genuine documents so as to prevent discovery would
seem to be impossible.
"It should be remembered that in all cases of this kind,
where an attempt has been made to imitate another's hand-
writing that there is likely to be more or less likeness of
some of the letter forms, as in this single letter and in the
signature in this case, whose only radical difference would
seem to be in the connection of the first 'i' with the 'g.'
"TABLE 5. Tin: LETTER 'II.' — There are some over one
hundred of these l<-tt<Ts in the Will, all made with an open
or closed loop, with the exception of one or two; the only
Estate of Dama. 63
clearly seen example, analogous to most of the genuine letters
of this sort, I have copied from a section of the Will, marked
'Sixthly.' It is shown enlarged at figure 7, Table 5. There
are thirty-four of these letters in the document before alluded
to as having been written within two months and six days of
the date of the Will; and here, too, is seen the strange dis-
crepancy of an entire departure from a lifetime habit in the
formation of a single letter.
"There seems to be no possible reason for this being done,
even if it could be done. As the work of an imitator, as I
have said before, it seems reasonable enough that one form
of letter should be used on account of its being much easier
to copy one form than a variety of forms, such as are seen in
the genuine documents.
"The looped forms of the shaft of the 'h' occur much less
frequently in the genuine documents, it will be noticed, than
the other forms ; still this form has been chosen for some
occult reason as the one for imitation.
"There is another curious and significant fact in this con-
nection. It is the habit of this writer, as seen in the genuine
documents, frequently to connect this letter with either the
preceding or succeeding letter, or both, in words in which it
forms a part. Thus, in document marked 'E. S. 1,' there
are some thirty-four of these letters (h), twenty or more of
which are so connected with other letters. In the document
marked 'E. S. 2' there are some fifty-five h's, forty-five of
which are joined with one or two letters each. 'E. S. 3' has
seventy-five of these letters, sixty-five of which at least are
joined to other letters. In looking over the Will, it will be
seen that not one in ten of the h's are joined to other letters.
"Here is a very essential and important difference which
separates the Will very far from the genuine document. This
habit of joining or not joining letters in the making of written
words is an unconscious habit, and, as we see, exists in all the
genuine documents in the case and would certainly be found
to exist to some analogous extent in the Will, if it had any
claim to be recognized as a genuine document. Here again
comes in the pertinent question : Why did the writer of the
Will, provided we admit that he could have done so, change
his usual habit in the production of this document?
6-i Coffey's Probate Decisions, Vol. 5.
"Certainly the difference between the letters from the two
sources, which I have figured and described, and which con-
stitutes them two styles of writing, does exist, and it seems as
positively certain that they must be the work of two different
persons.
"TABLE 6. On this table I figure thirty-eight specimens
of the letter I, twelve from the Will and sixteen from genuine
documents. I have counted one hundred of these letters in
the Will, nearly or quite all made as shown with the looped
shaft and with, in most cases, a slightly hooked base. In the
genuine documents, there are three distinct varieties of the
letter with open and closed loops, and with a single down-
stroke starting from the tip of an upstroke and thickening
somewhat as it proceeds to the line. In the document E. S. 1,
written as we' have before noticed, within some two months of
the date of the Will, there is not a single open-looped letter,
and in all the eleven genuine documents on which this exam-
ination is based, we find these three forms of this letter in
contradistinction to the single form seen in the Will, and
here again we find two distinct styles of writing as far as
this single letter goes, claimed to be written by one and the
same hand. Perhaps this looped form of this letter was
chosen as the one for imitation in the case on account of the
analogy between it and the other looped forms — e. g., the
'b' and the 'h' and the top of the 'f,' all of which are
fashioned on a similar form. This certainly simplifies the
matter, and renders it much easier to repeat these few forms
than the variety which are found in the genuine documents.
"TABLE 7. On this Table I have figured a number of
these letters (t) from the two sources; the first line from
the Will, the other two lines from genuine documents. I
have counted over two hundred of these letters in the Will,
■iinl it will be seen by the example on the Table how uniform
they appear, and how they compare in this respect with those
from the genuine documents.
"Then, again, these letters in the Will are rarely connected
at nil with the other letters near them, and never, as in the case
in the '-'emiiiie, with the terminal upstroke being carried up
to the top of the following letter, as the 'h,' for instance.
Estate of Dama. C5
Here is a radical difference, which of itself alone separates
this letter in the genuine documents from those in the Will.
"Next come TABLES 8, 9, 10, which are made up of the
magnified forms of the dots over and after letters and words ;
those on Tables 8 and 9 are magnified fourteen diameters —
that is, one hundred and ninety-six areas or times — while
those on Table 8 are magnified twenty diameters — forty areas
or times.
"On Table 8 there are twelve forms — the first two lines
from the Will ; the lower two lines show twenty-three magni-
fied forms from two genuine documents; the first being the
letter to Miss Harris (E. S. 1), dated July 14, 1887, within
two months and six days of the date of the Will; the other,
the lower line being from a genuine letter dated July 8, 1885
(marked E. S. 3).
"Table 9 contains four rows of these magnified dots from
the two sources; the first, the Will, the second, third and
fourth from genuine letters of Luigi Dama, the decedent in
the case. There are twelve of these dots in the first line of
the Will and forty-seven (17) from six genuine documents.
"Table 10 contains twenty-two of these enlarged dots from
the Will (lines 1 and 3), while lines 2 and 4 contain twenty-
eight of these magnified dots from two genuine letters.
'There is perhaps no evidence so certain, so positive, in
connection with this line of investigation as is furnished by
the comparison of these characters. In the first place, they
are the results of absolutely unconscious habits of manipula-
tion so far as their form is concerned. No one is ever taught
to observe any form in making these dots, w T hen being first
initiated into the practice of shaping written letters, and they
are of so small size in most cases as to render the fact of form
inappreciable to the eye, and further, this fact of form is of
no sort of consequence as regards the accuracy of the writ-
ing, or the construction or meaning of the sentences.
'The location of stops or marks (as all know) is of vital
importance in the construction and meaning of sentences, but
the fact of size has no relation whatever to such question.
"There are 158 of these enlarged dots shown on the three
Tables 8, 9, 10 ; 60 from the Will, 9S from ten genuine docu-
Prob. Dec, Vol. V— 5
66 Coffey's Probate Decisions, Vol. 5.
meiits. consisting of ten letters written by the alleged author
of said Will. These dots (as is recorded on the diagram)
have been taken with no idea of selection from various parts
of the genuine documents. Upon comparing the two sets of
forms, it will be seen at once, I think, that under the condi-
tions of their formations they could not have been the work
of one and the same hand. The gcr. nine forms cover over a
space of a number of years as the constant practice and habit
of the writer. Any single group would be recognized at once
as coming from the same source as all the rest. Thus, those
on Table 8, line 3, from the letter of July 14, 1887, were cer-
tainly made by the same hand as the one that made those on
line 4 on the same table, from the letter to another party,
dated July 8, 1885. And so of these on Table 9 from six
dilierent genuine documents, there could be no question but
that they are all from one and the same source. The same
fact of individual likeness is seen in those copied from the
Will, which as surely connects them with each other as the
work of one and the same person, and as clearly and positively
separates them from the author or writer of those from the
genuine documents.
"The form and position of the genuine dots are curiously
various; elongated, shortened almost to a point, sometimes
quite straight, then again turned in opposite directions —
pitched both to the right and left, sometimes horizontal, some-
times bent in a semi-lunar form, and in two or throe instances
they seem to have been made by a mere clot of the pen. It
would seem impossible to get up a much greater variety of
e forn:<. were one to do so, and wire they to be made
large enough so that one could see his work during its per-
formance, as is the case in the di is.
"Upon comparing these forms from the Will, we shall see
e last (from the Will) were all made with a single sim
motion of the hand, involving but little muscular action, while
in 1li<- genuine, quite a variety of motions of the hand and of
g also musl have been employed in the construction
of these curiously varied forms.
"It will be seen that I have based this investigation mainly
upon a few of tin-- Letters and the dots constituting the docu-
Estate of Dama. 67
merits. This has been from the fact that the comparison of
these forms so fully, so clearly, establish the fact that the Will
and the genuine writings of the alleged writer of the Will
were by two distinct parties, and consequently the said Will is
a forgery, that further illustration would add nothing to such
proof.
"As regards the general appearance of the document, the
Will, I may say that is much more evenly written as a whole
(like the letters I have) enlarged than the genuine documents.
These last have a scratchy appearance, as compared with the
Will. There are a great many more ascending hair lines, such
as those joining the 'h' with the preceding letter in the
words 'the,' 'that,' etc., which tends, with other causes, to
produce this effect. The words, too, are much more broken
into syllables and single letters in the Will than is the case
in the genuine documents. In the first fifty words in (apen.
2) from the Will, there are 160 of these breaks consisting of
syllables and single letters in the Will than is the case in E. S.
3, July 8, 1885, there are eighty-three (83) in fifty words. In
section 'Sixthly' of the Will, beginning at line 4, the first fifty
words show (150) breaks, while the second fifty words in E. S.
1 show (85). The second 50 words after the above of section
Sixthly of the Will contains 190 breaks, in E. S. 6 the genuine
letters the first fifty words show 90 of these breaks. Here,
too, is a curious and, as I think, an important distinction be-
tween the documents, showing very clearly that they could
not be the production of one and the same hand. I have made
these counts as carefully as possible, so they may be relied on
as practically correct.
"In looking back over the whole ground, I think I am war-
ranted in coming to the conclusion that, as a scientific fact
it is clearly proven from the data presented that the alleged
Will of Luigi Dama is not in his handwriting, as therein
claimed, and is, therefore, a forged document.
"All the materials I have collected and which I show on my
diagrams can be seen by the unaided eye, and as I have re-
ferred to each one in its order, so that the Tables may be used
as indexes to find the letters, a comparison can at once be
made, so as to test the fairness of my work. The points which
I have made, all of which may be seen by the unaided eye, are
GS Coffey's Probate Decisions, Vol. 5.
as follows: 1st, the signature to the Will, the first 'i' joined
to the following 'g, ' which is never the fact in the genuine
signatures.
"2d. The (d) Tables 2, 3, 4, in the Will terminal, and
always, thickened and more or less blunted, and pretty uni-
form in length and direction. Genuine rarely blunt in the
terminal ends, or if so, continuously so, on account of the
general thickening of the line of the whole letter, terminal
end often very much elongated, varying greatly in direction.
"3rd. Table 5, the letter 'h' very uniform in size in the
Will and in almost every case made with a looped top, mostly
open, sometimes closed.
"The genuine 'h' has rarely a looped top and is quite
variable in form, which is mostly in marked contrast with
those on the Will.
"In clause 'Sixthly' of the Will, beginning at the fourth
line to the next' clause 'Seventhly' there are twenty lines
containing thirty-three of these letters (h), three of which
only are connected with other letters in words which go to
make up the document. In E. S. 1, letter of July 14, 1887,
written, as will be remembered, within two months and six
days of the date of the Will, there are 21 lines, showing 36
letters (h) ; of these 25 are united with other letters, while
eleven stand alone, not being joined with their fellows.
" This joining or non-joining of certain letters in writ-
ten words must be an unconscious habit on the part of the
writer ; how then shall we account for the entire change
of habit on the part of this writer, and in so short a
time too, provided for one moment we admit the claim
of the genuineness of the Will. In the genuine, two-
thirds of the h's are joined with other letters ; in the
other, the Will, only one-tenth are so joined.
"The claimants as to the validity of the Will are cer-
tainly boifhd to account for this strange and sudden dis-
crepancy, between the genuine documents and the Will
in thia respect. _
"4th. TABLE G. The letter ( * ) here almost every
one of these letters which occur in the Will are looped,
Estate of Dam a. 69
while in the genuine but a small percentage are looped letters,
thus separating the two documents a wide distance from each
other. The claim for the genuineness of the Will becomes
still more absurd when we remember that such a marked
change of habit in respect to the formation of these letters,
must have taken place in so short a space of time.
"5th. The letter 't'; the principal and marked difference
in these letters as they exist in the Will and the genuine doc-
uments, consists in this connection with other letters in the
words which go to make up the said documents. In the Will,
taking the 20 lines following 'Sixthly' from the 4th line, I
find 45 of these letters (t) eight (8) only connected with
other letters, while in the letter of July 14, 1887, there are
49 of these letters, forty of which are connected with their
neighbors. Here, too, as we see, the same fact is confirmed
of an entire change of habit in the short time of two months,
provided we claim that the two kinds of documents were writ-
ten by one and the same person.
"6th. The dots over and after letters.
"Tables 8, 9, 10. These are fully gone over elsewhere.
"In view of the great and marked distinction between those
on the genuine documents and those on the disputed (the
Will), and the fact that first these must have been habitual
with the writer ; that he could not have thought of their forms
at all, and the fact that these on the Will are so entirely dif-
ferent in every respect, it seems to me from this evidence
alone, we should be warranted in coming to the conclusion
that the two kinds of papers were, without question, the w T ork
of two distinct individuals." (The foregoing resume is in-
dorsed "Brief R. U. Piper.")
Dr. Piper's "Method."
Dr. Piper testified that he took the enlargements on his
tables with the camera lucida, and afterward filled in with ink ;
he explained his method of producing the illustrations upon
his tablets; he had taken, as already stated, certain letters or
characters from the photograph of the alleged Will and ex-
amined and enlarged them on these tables; a dash or dashes
may or may not be characteristics in writing and also the
70 Coffey's Probate Decisions, Vol. 5.
formation of the numerals; one cannot tell by the appearance
of writing whether it was written fast or slow; the doctor
explained his mode of examining the paper, Respondent's
Exhibit No. 3, the "Altered Will," of November 1, 1885, and
stated his conclusion that the document was false and fraudu-
lent; he had used the microscope to make his examinations;
he had examined also the Respondent's Exhibit No. 31, the
"Draft of Long Memorandum" and pronounced it not false;
he had not examined the paper marked Respondent's Exhibit
No. 2; the Respondent's Exhibit 31, "Draft of Long Memo-
randum," he pronounced true and genuine; he had examined
it with a microscope; he examined Respondent's Exhibit No. 3,
"Altered Will," and Respondent's Exhibit No. 31, "Draft
of Long Memorandum," with a microscope and compared
them with certain tables prepared by him of illustrations
from other writings offered to him as examples of genuine
writing; a single individual writing sometimes shows as well
as twenty; he had no question but that the two papers, the
Alleged Will of May 8, 1887, and the "Short Memorandum"
were forgeries; to him they had enforced a demonstration.
No testimony could be more positive and precise than that of
Dr. R. U. Piper, expert witness for the contestant.
Experts of a Contrary Opinion.
Experts cannot err. In matters of science and art they are
infallible, in their own opinion. But opinions differ.
Gumpel — IIickox — Hopkins — IIorton — Hyde.
Numbers do not necessarily count in the case of expert wit-
nesses, any more than in other cases. We are not bound to
decide in conformity with the declarations of any number of
witnesses, which do not produce conviction in our mind,
against a less number or against a presumption or other evi-
dence satisfying our mind: Code Civ. Proc, sec. 2061, subd. 2.
It is quality rather than quantity that the law regards; so
thai the mere fad thai numerically the force of sheer experts
is stronger on one side than the other in this case is not a
Estate of Dama. 71
matter of moment in itself. "We shall try to determine
the effect of this evidence by its aggregate value on either
side by weight and not by number.
GUMPEL.
A lithographer, forty-five years old, who has made a
special study of handwriting for many years, a frequent
witness as expert in court trials; he had first examined
some of the papers in this case at request of one of the
counsel for the contestant; he had conversations with him in
German about the case and Gumpel told the counsel that he
did not like the appearance of one of the papers — the alleged
Will — the writing looked "too stiff"; Gumpel had also ex-
amined a number of other papers at the request of the attor-
neys for Respondent; they are all Respondent's exhibits, ex-
cept one, which is marked Contestant's Exhibit H — 60. Upon
being shown the alleged Will, the "Short Memorandum," the
"Long Memorandum," the "Altered Will," the Respondent's
Exhibit 29, a large white envelope, and Respondent's Exhibit
28, a large yellow envelope, the witness Gumpel pronounced
them, in his opinion, in the handwriting of Dama ; the four
disputed papers first specified (Alleged Will, "Short Memo-
randum," "Long Memorandum," "Altered Will") are writ-
ten slowly and distinctly in every letter; Gumpel found that
every characteristic in all the letters of the alphabet in the
genuine writings are preserved and repeated in the disputed
documents, same misspellings and use of apostrophe, and other
coincidences, and Gumpel gave upon the blackboard a series
of illustrations expository of his opinion and reproduced some
of them in fac-simile on page 162 of the judge's manuscript
notes of testimony (Thursday, April 30, 1891, 12 meridian).
Gumpel says that an imitated script will always betray a
stereotyped form, reproducing habits in the same style,
whereas a genuine composition will vary in style of formation
of characters. (See judge's manuscript notes of testimony,
pages 161-163, 176.)
72 Coffey's Probate Decisions, Vol. 5.
HICKOX.
George C. Hickox has given special study to handwriting
for over thirty years with a view to testing genuineness ; has
testified hundred of times in all the courts ; examined some of
the papers here in dispute, first at the instance of counsel for
contestants and afterward upon request of Mr. J. P. Smith
(husband of executrix) and of Mr. Samuel M. Wilson, the
lawyer, and after having made that examination he came to
the conclusion that the alleged Will (except the signatures of
subscribing witnesses) was written entirely by Luigi Dama
and he said the same of Respondent's Exhibit No. 1, the
"Short Memorandum"; Exhibit 2, "Long Memorandum";
Exhibit 3, "Altered Will"; Exhibit 4, "First and Second
Draft Will"; and Exhibits 28 and 29, large envelopes. Ex-
pert Hickox gave reasons illustrated on the blackboard in de-
tail for his opinion as to the genuineness of the papers in
dispute. He also, with the aid of the microscope, examined
the signature "Bellini Antonio" on the alleged Will to dis-
cover whether it was written over or under the final stroke
of the name "Henri Godard," and Hickox declared that the
result of the microscopical examination showed that "Bel-
lini" was written over the stroke, and he produced on page
156 of the judge's manuscript notes an example of the man-
ner in which this was done. Upon this point Professor
Young had expressed a contrary opinion ; that the down-
stroke in the nourish to the signature "Henri Godard" had
the appearance of being written over the name ' ' Bellini ' ' ; the
professor was not positive ; but he could and did give reasons
for this opinion; the peculiar way in which the person wrote
who signed the name "Bellini" showed this; Professor Young
made some experiments with the purpose of testing this and
proved his premises by deductive demonstration; see page 34,
judge's manuscript notes of testimony. Counsel Kelly in
discussing this feature of the evidence said that no one after
considering the testimony of Professor Young could question
his ability as an expert in chirography and a professional
Estate of Dama. 73
penman; the professor showed in the presence of the court
his capacity not only to judge scientifically of the authenticity
of autography, but to imitate and produce simulations with
rare rapidity; the counsel thought the professor's opinion
was entitled to a great weight as a whole, and that in the de-
tails of his evidence he had given unanswerable reasons for
his conclusion and had shown that the name of "Henri Go-
dard" as a witness to the alleged Will must have been writ-
ten after the name "Bellini Antonio"; and Counsel Kelly
showed himself to be possessed of talent as an expert by per-
sonally elucidating and illustrating this theory on the black-
board. (See judge's manuscript notes, page 200.)
HORTON.
Peter Davis Horton, a teacher of writing, sixty-four years
of age, for over forty years almost continuously engaged in
the profession of penmanship ; often employed as expert in
court; had a system of his own, " Horton 's Pen Guides"; had
some original methods and an adaptation of the Spencerian
system; had examined the papers submitted to him — a series
of the Respondent's Exhibits — and he pronounced them gen-
uine, that is, all written by the same hand ; he had examined
the papers assumed to be authentic and had used photographs
of the alleged Will, the "Altered Will," the "Long Memo-
randum," the "Short Memorandum," the "Long Draft" and
the "Short Draft" and the copy of Mrs. Dama's Will, and
the E. S. series of papers and he had made comparisons, the
results of which he set forth with great minuteness and literal
detail. Horton had discovered a cause which was satisfactory
to him why there were more loops in some of the writings
than in others: One of the papers is the "Short Memoran-
dum," Respondent's Exhibit No. 1 (characterized by counsel
for contestants in his argument as "the most vicious forgery of
them all"). Witness Horton illustrated on the blackboard
the process and result of his discovery. In the alleged Will
a finer pen was used than in many of the undisputed writ-
74 Coffey's Probate Decisions, Vol. 5.
ings ; had Dama used a coarser pen fewer loops would have
occurred; "it is the simplest thing in the world, just an acci-
dent," said expert witness Horton; he discovered also in that
most difficult thing to make, the rubric under Dama's name,
a striking similarity in the shades and in the movement, the
hardest thing for a forger to handle; in comparing the gen-
eral styles of the two sets of writing Horton found that the
correlations fit together like that of the warp and woof in a
piece of cloth ; the witness Horton went through all the let-
ters of the alphabet as they appear in different documents,
pointing out resemblances between the characters in the dis-
puted papers and those assumed to be authentic ; in his opin-
ion the writing on the large yellow envelope was genuine.
Expert Horton furnished to the court a table of references
to similarities between disputed and admitted writings, which
is somewhat in the nature of a brief in support of his theory.
HOPKINS.
R. C. Hopkins, aged seventy-five years, a resident of San
Francisco for forty-one years, formerly employed in the
United States surveyor general's office as keeper of the Span-
ish archives; had been employed to examine papers in the
archives for the purpose of giving testimony concerning land
grants, was so employed from 1855 to 1879, in which latter
year he was sent as special agent of the Treasury to Mexico
to examine papers with reference to land grants in the terri-
tory of Arizona, and afterward was engaged in the office of
the surveyor general of Arizona until 1885, then came back
i<> San Francisco and was about a year more in the United
Stalis land office in San Francisco; testified often in the
United States district court as to handwriting and had also
testified in this probate department before the present judge
in a contest ovit an alleged forged Will; the expert Hopkins
was firsl spoken to about thi.s ease by Mr. Samuel M. Wilson,
the attorney, in L889, and made some examination of photo-
graphic copies '>!' papers shown him by Mr. Wilson at that
time; since then within a few months before date of testify-
Estate of Dama. 75
ing (Monday, April 13, 1891), he had examined the alleged
Will and the "Short Memorandum," the "Long Memoran-
dum," and formed an opinion that they were genuine writ-
ings of the deceased Dama. Expert Hopkins gave, among
other reasons for his opinion, the disconnection or want of
connection of certain letters ; the connection of certain letters ;
it appeared to Hopkins that Dama had a prevailing habit of
connecting certain letters such as "a m" in "Dama," "same,"
"testament," and "diam ond"; in "testament" it is un-
connected in several instances, but Hopkins alluded to the
prevailing habit ; of course there were exceptions ; in every
example of his name this expert witness found the letters
"a m" connected "D am a"; the same persistency of habit
appears in the letters "an," "em," "en"; another charac-
teristic was the spelling of certain words, for example, the
word "influence" is spelled "influece," omitting the second
"n"; also similarity of language in the disputed and undis-
puted documents, and there were other examples of persistent
peculiarities of habits. In his cross-examination the witness
Hopkins said that he did not exactly comprehend what an
"expert" is; he did not profess to be infallible as an expert
nor did he see how there could be anything akin to infalli-
bility outside of the exact sciences; "in handwriting there
can be no such thing as exactitude or demonstration"; he
was the same person who examined the so-called "Markham
letter" and pronounced it genuine and he had heard that
expert Hyde (one of the counsel in this case) and expert
Hickox expressed a contrary opinion, but expert Hopkins said
and continued to believe that the "Markham letter" was an
authentic emanation, he had examined what purported to be
an original paper written in pencil and he understood that
experts Hyde and Hickox examined a photographic copy of
that letter. Mr. Samuel M. Wilson, whom witness Hopkins
had known for forty years, and for whom he entertained re-
gard as a man of high principle and honor, asked him to ex-
amine these papers, and he did so without prepossession and
with a view solely to discover the truth ; the witness said that
76 Coffey's Probate Decisions, Vol. 5.
his respect for Mr. Wilson's character might have exerted a
moral influence, but certainly had he found the fact of forgery
Hopkins would have so declared without hesitation; he was
concerned in ascertaining the bona fides of the documents and
learning the truth; Dama's hand would not be a hard one to
simulate; the handwriting of the alleged Will was written
with the care befitting the solemnity of the occasion ; it was
evidently copied from some document of similar import and
done with deliberation and less freedom of movement than
his ordinary writing. Witness being shown the Respondent's
Exhibit No. 3, the "Altered Will," said that from the appar-
ent care with which it was written he should say it was
originally written as a Will ; each letter is distinctly and
carefully made. (See page 141, judge's manuscript notes of
evidence.)
HYDE.
While Mr. Henry C. Hyde appears in this case as counsel,
his argument is of such a character that I feel justified in
treating it in the category of expert testimony, for such it
is essentially, relieved of the constraint of cross-examination
and free from the burden of an oath. Mr. Hyde has made
a specialty of the study of handwriting for thirty years or
more, and had used the microscope in his examination of
manuscripts for above twenty years, and had frequently been
called upon to employ and exhibit his talents in court in
judicial inquiries in controversies over disputed writings, and
had been so engaged in noted cases in probate. Mr. Hyde in
his expository statement undertook to confine himself entirely
to the facts connected with the charge of forgery and to the
scientific proofs demonstrated; he assumed to elucidate the
elementary principles that underlie proof of handwriting,
and said that the handwriting of a man is as distinctive as any
other phase of personality or individual character; the quali-
ties and habits of writers are as various and distinct as the
writers themselves; Ihcre are definite limits and possibilities
to the capacity of a forger and the difficulty of the task of a
Estate of Dama. 77
forger is the reason why so few forgers have been successful ;
the forger only sees effects to imitate, but he does not see
how those effects are produced; it has been argued that if a
small number of characteristics can be simulated an indefinite
number may be imitated, provided time be given — the answer
to this is, that the smaller the number of items to be imitated
the easier the task of the forger and the more difficult detec-
tion ; in the case at bar, Mr. Hyde asked, what was the ne-
cessity of simulating and manufacturing so many documents
as are in dispute? Why should the forger act so recklessly?
He must have had a sublime confidence in his own ability to
fabricate and to deceive by his fabrication. It is difficult to
imagine the magnitude of the task set to himself by the
forger of this alleged forged Will; it must have involved his
perfect transformation into Dama himself; he must not only
have acquired his habits of hand but have become possessed
of 1 's spirit; it would have been impossible for a forger to
have accomplished all these forgeries unless he were in the
possession of facts and gifted with powers not given to any
other man than Dama himself; no other man could possibly
have executed all these manuscripts in dispute ; the difficulties
in the path of the alleged forger rendered his success prac-
tically impossible; the excess of loops in the Will may be ac-
counted for by the manifest desire of Dama to make every
letter perfect and distinct — this is plain from an inspection
of that instrument, and the expert counsel undertook to show
the proportion of loops, blind loops, and mended loops in the
various documents under examination. The expert, Doctor
Piper, had set great store by the dots, over the letter "i,"
which, in his opinion, were enough to amount to a mathemati-
cal demonstration that the Will was a forgery, and expert
Counsel Hyde engaged in an analysis of the exhibits of
undisputed papers to offset and overthrow the opinion
of Dr. Piper; upon an examination of the Exhibits E. S.
2, 8, 6, 5, 7, 9, respectively designated in evidence as
Contestant's Exhibit C — 3, letter signed "Luigi" and
addressed to "My Dear Jennie," dated "San Francisco,
78 Coffey's Probate Decisions, Vol. 5.
March 28/86"; Contestant's Exhibit 1—9, letter signed
"Luigi," beginning "Brot Benj," dated "San Fran-
cisco, Deer. 25/86"; Contestant's Exhibit F — 6, signed
"Luigi," beginning "My Dear Sister Jennie" and
dated "San Francisco, Deer. 9/83"; Contestant's Ex-
hibit E — 5, letter signed "Luigi Dama," beginning
"Bro Ben," dated "San Francisco, Octr. 6th, /85";
Contestant's Exhibit H — 8, letter signed "Luigi Dama,"
beginning "Captn. E. W. Randall, Dear Sir," dated
"San Francisco, Feby. 24/84"; Contestant's Exhibit
J — 10, letter signed "Luigi Dama," beginning "Dear
Brother" and dated "San Francisco, Deer. 15/84"; it
appears that in very few of these sample letters are there
not dots over the "i," angular or rounded mixed, that is
to say, examples of each kind of dot; expert Counsel
Hyde thought that it looked as if expert Doctor Piper
had purposely selected his standards to support his
theory. Expert Counsel Hyde claims to have shown that
there are rounded "i" dots and angular "i" dots scat-
tered promiscuously in the documents disputed and
undisputed; in the word "buried," in line 10 of the
alleged Will, there is a light dot over the "i," a light
stroke or touch of the pen, and there is a prevalence in
Dama's writings to this form of dot, and the conical dot,
or the dot with the point sharp downward, is often met
with; there are in the alleged Will numerous examples
corresponding to the "i" dots in the undisputed papers.
Another point adverted to by the expert Doctor Piper
and illustrated on his Tables is as to the form of the
small "a." Expert Counsel Hyde says that there are cer-
tainly differences between the forms of the "a" small
letter, bn1 they are all made on the same principle, they
are all begun with the curl on the inside, " n/ " see
Estate of Dama. 79
R©spdts Ex. 123, these are counterparts in all respects of
the " «/" in Dr. Piper's Tables and absolutely negative
his deductions,. " of " " «/""«/ ," these are shown
in the Altered Will, a paper drawn with more care
even than the Will itself, they are characteristic of
Dama's writing in his more slowly and carefully
composed papers, such as the superscriptions on
envelopes and the Will and Altered Will: As to the
joinder and disjoinder of the " t " with other letters in
words: The very motive o£the writer of the Will, that is,
the precise formation of the letters, will account for the
disjunction : The capital "£j "
^ y> y> cf kf kf y±s in
the Randall Will, Contestant's Exhibit >I — 13, and in
the alleged Will; the " a/» on line 54 of the alleged
Will is the only example of that form in the Will
and that is the prevailing form of Dama's '* *' ",
and it is curious, if Dama were not the writer of this
Will, that there should be a variation throughout from
the common form of this letter, and that it should
be used in one place only: In the "Short Memorandum"
there is another aud very peculiar form of the capital
tetter ••/<" ••J r >< •<£» J&'A'A/*'
see the Buhne letter, Respondent's Exhibit 89, the
envelope addressed " Mrs. J. P. Smith," Respondent's
Exhibit 97 and 98 : The variations or discrepancies
which expert Doctor Piper adduced as proofs of the
falsity of the Will do not exist : It was a remarkable
habit of Dama to repeat similar forms in a single
writing; this is shown in the "Randall" Will, which
is certainly a document that cannot be and is not
disputed : It was manifestly his object to make his
Will with the utmost care : In writing his more careful
compositions his habit of disjoining letters is apparent ;
80 Coffey's Probate Decisions, Vol. 5.
this is shown in the Will and the Altered Will, in the
Randall Will, in his superscriptions on envelopes
and endorsements on documents ; it should seem that
this feature of disjoined letters which is relied upon
by expert Doctor Piper as a proof of forgery is evidence
to the contrary : Professor Young's accounting for the
apparent lapsing of the writer of the Will in line 72 is
very ingenious, that the forger had by this time
become so practiced in imitating Dama's hand as to
become less careful, but expert counsel Hyde argued the
contrary that the writer having become fatigued from
the exercise of unusual care relaxed the rigidity of writ-
ing and resumed his normal habit, wrote in his usual
style : Every capital letter in the alleged Will has its
exemplar in the undisputed documents and letters :
Counsel illustrated his argument on blackboard : Five
forms of the letter &* e7/ c/r J*L Gb , the last
enlarged small 6U: ^O , found in the \V\\\,l/cJ t^j in
Randall Will, t/c> in the letter addressed, "Missel?
Harris ; " E. S. 3, presents a sample in " Dear brother
Wen," the " w " in "c/$en ;" another form with
one stroke : " & : " There are two forms u io" "(?,"
see the <; ty? " in " California," third line of Will and
compare with the " ^Q " in " ^hase" in Respondent's
Exhibit 73 : The other form of his capital*? (3 @ ,
only one example in the Will, but many in the standards:
The forms of capital OcJoc/ Cxi: The prevailing form is
<§£.
found in the " Long Memorandum." The letter'
first form found in lines 12 and 71 of tho Will and 18 or
Estate of Dama. 81
20 found in standards %D : other form six times "in the
Will: Qj <£> (o <o 1" the will there is but one form
of the letter (y£and in Respondents Exhibit 27, q/*\ this
is used in other parts of his writing as a part of his capital
^ ; his usual form was^ as found in the
" Long Memorandum." >?
There is but one example of & in the Will, in line
31, in word " Governament, " its exemplars are to be
found in Respondent's Exhibit 23, the ." Blue Will,"
twelfth line, u in "Gas;" and in Respondent's Ex-
liibit 34, in the address " ** ibbons ; " the other form of
the ^ "_ ^ » in «£/ us Stock" is found in the Randall
Will, i. e., Contestant's Exhibit M — 13, one example
in Will, three in standards, the second is the more com-
mon form, »7 , in shape of letter *° : The capital
letter *° , he makes the ^ and then he proceeds to
add to it the common form of small " , " thus
" c/S& ; " " tA«6 { " in Randall Will, line 58, and 30;.
and 8, are congeners of the second form of the
^ : 1 he capital has three prevailing
forms, compare line 40 of the Will and E. S. 1, the
Belle Harris letter, " Of , " " (J? ," " c!7 ; » the
next form C7 Qy C/ is found in line 9 of Will and
in line 8 of E. S. 7, " Q? " " C/" and in E. S. line 15,
Prob. Dec, Vol. V — 6
82 Coffey's Probate Decisions, Vol. 5.
E. S. 3, " c7 " I" line Gl of Randall Will and in
line 47 of alleged Will compare the Qj (*y ; this is
important in connection with other matters, — if isolated
it might not have so much force — the " (£/ " in Re-
spondent's Exhibit No. 89, note the thickened termi-
nation with a slight suggestion of a tick to the right;
" (*y : " There are two forms of the capital letter
M <S , " but they are so alike to the letter" U " in
principle that he gave no illustration. The capital
" QsL/ " in Randall Will is not characteristic of Dama ;
his ordinary form of capital " tyu " was a small ' /x
enlarged, thus " /£ " " #* / " compare CXC in
" <lfl/ " Randall "\\ ill and same letter in same word
in alleged Will: Now we come to " o^o " (Expert
Counsel Hyde continued illustrations on blackboard:)
Proceeding with the capital letters, expert Counsel
Hyde put upon the blackboard three forms of the letter
, the first form is in line 2 and 60
of Will and 3 and 12 of Short Memorandum, the sec-
ond form is found but once in Will in line 57 ; the
third form is found only in signature; the last form
is the prevalent one in Duma's usual writing, there are
found no less than 18 examples of it in the standards:
Next the capital <2/fV —
<^H) vAlO *A{p csJLcAi : there are five dinvr-
ent varieties of this letter, it would be of no consequence
to separate them, ii they were not common to all his-
Estate of Dama. 83
writings,— a typical example of the first form is line
27 of Will, " t/vtyaJA »" ux ^ ie g rou pi n g s °f expert
Counsel Hyde it has been sometimes difficult to separate
the first and second forms, examples of the second are in
line 11 and 36 of Will, " (5 /£^aine" and " ^rs :" see
standards Respondent's Exhibit 73, envelope address,
" cMp artha," and Contestant's Exhibit L — 12, line 36,
" Jfrlo I '" tn * r( * f° rm i ]1 l* ne 50 of Will and in enve-
lope to E. S. 6, — in envelope on Randall Will in word
" ^^onmouth," only no hook at end, and in E. S. 6, ad-
dress, " ftjAy dear Sister ^yennie ;" there is very little
difference between the fourth and fifth forms : on Photo
Plate 23 are verj' good representations of the different-
forms and their analogies : As to the N, expert counsel
Hyde made no table, finding but one form throughout, it
is made with but one stroke of the pen : " The letter (y
is a very characteristic letter of Dama : (^f (^) (^(^) '
in the Will ; two noticeable examples in standards, one in
the Buhne letter, Exhibit 89, in the word" 'fi/ccA"'
and in Contestant's Exhibit D — 14 in word " ^^malia ;"
Photograph Plate No. 24 contains good analogies : The
capital ^ ^P^^t^- there are some modifica-
tions to the terminal loop ; another foriij is one stroke
^^, not found in the Will but in the standard: a remark-
able uniformity in Dama's writing is in the terminations :
84 Coffey's Probate Decisions, Vol. 5.
see Photograph Plate 25; see the words
"\S 1 I VeiCe, \JctjoeSv " , line 7 Short Meinoran-
dum: The capital c^rlcannot be better illustrated than
by reference to expertTGumpel's Tables, photographed
from blackboard ; the remarkable feature is that they
begin from bottom like the ^r/^ind then go on like the
fy^T ; note line 58 of the Will and in one qf the envelopes
addressed to Benjamin Randall in Randall deposition :
" *^\ 4 " in line 58 of the Will : The capital letter
q/ has three forms in Dama's writings: OS ^S c/ '•
there are 23 examples of the first form in Will ; but
that is not the prevailing form in his usual writings :
expert counsel Hyde says he has referred to but six
" £j\ " in the standards ; the second sample qr^ is
the prevailing form, forty-eight instances counsel has
taken from standards : In Respondent's Exhibit No. 73,
are found both the first and second forms ; three times
in envelope, is the first form, and the second form occurs
twice in the letter ; the reason is manifest, writing in his
customary manner with ordinary rapidity and fluency he
used the second form: As to the letter" £," q%J,
there is but one general form, the European script
(o iO ' Photo Plate No. 28 contains a series of par-
allel examples; closer resemblances it would be difficult to
conceive of, allowing for slowness of writing and use of
pen: X g (q iO ID W ($ //? Coming down
to the capital §^§ , omitting U and V, — there are five
Estate of Dama. 85
forms found in Will: ffl ty ff *ffi ' f$* ■ the
same series of variations is found in the standards ; it is
inconceivable that a forger could have discovered these
slight variations and reproduced them in the indiscrim-
inate manner found in the Will: E. S. 11, line 36, the
yy/in the word " py aterhouse" corresponds to fourth
form; there is but one example of the fifth form in the
Will, line 69, ""^f" in "/^atch:" Observe Photograph
Plate No. 29 for remarkable resemblances as to general
form and character; grouped because of resemblance:
The letter Y is found in two instances only in Will: <£/,
almost like print, the second more like writing, £/, line
86; compare second form with £/in t/ork iirblue letter,
Respondent's No. 25: E. S. 8, Contestant's Exhibit I — 9,
on lines 19 and 22 are examples not quite as good how-
ever as the other standard. The next point is the abbre-
«<■—.&*.: **& <£*>
is frequent in the standards, see line 9, E. S. 1; there
are 15 in E. S. 6; in E. S. line 8, v7^>. S. 9, and in
E. S. 11, line 47, ( ? X ¥- i.\ lu Respondent's Exhibit 43,
draft pencil letter, there is one, there seems to be no up-
stroke, but that is of slight importance, the general
resemblance being such as to preclude possibility of for-
gery: Now as to the small letters: Photograph Plate No.
21 exhibits a large variety, " €£•" " €V" these are the
same that are produced on the Piper Table 13," ££"
" £2 " u 60'- n There are several forms of the ter-
minal " £2/," the first example is in "California,"
86 Coffey's Probate Decisions, Vol. 5.
there is a slight tick to the left: " & ," " «- ,"
tiCO .,» ^ n ^| ie s t a ndards these characteristics are com-
mon, — in E. S. 10, alone, they are very numerous,
«, <Srb -L&9 ccvvcO 6oi*&et/(Jesr>fi«& n all t h rouan
this letter are found these examples, — this charac-
teristic tick terminal appears in other letters, such
as "A) " in E. S. 1, and also in E. S. 11, and
in the letter "^^ " we find a marked example in
envelope to Randall letter in the word " Bosto^ "
see also Photograph Plate No. 42: there arc also exam-
ples of the same kind in "^ ," and in the Long Draft
see the terminal in <l & " in " devise:" The small letter
<<-(>"> i* written by Dama in three forms, thus: (the ex-
pert couii^el illustrated on blackboard:) indeed there are
four: ■&-&&- -Os : the Will, line 80, illustrates
this: the same or a similar form is found in the Randall
Will, line 36, in word " •&& ;" also "business" in line
48: Expert counsel Hyde has made complete tables of
the small "J/ " «<? »' " J » « *) "•' & »
$ S) 2 9^ 909^
In the Will oh the third page on line 64^one~sample
of the first form, and on others, lines 72, 73, 74, 75, and
70, and in the standards the expert counsel enumerated
in In- Tables seventy-five examples, showing that it was
Duma's common and prevalent forms of his CJ t first
form as in "depth," " ^epth " on third page of Will;
this is a very important point not touched by other ex-
perts: The expert counsel proceeded to illustrate the
Estate op Dama. 87
different " cJ " forms, not touched by contestant's ex-
perts, because they were looking for differences and not
for resemblances : Photo Plate 53 shows good examples
of those found in Will and equally good examples from
standards: the clubshaped form is seen in Photo. Plate
50: " <) ;" Photo. Plate 49 shows the "shaded curl," as
expert counsel Hyde called it: note the general construc-
tion of the word " Cssrw ," parallelisms such as never
could have occurred in a simulated script; a coincidence
marvelous to a decree: there is a demonstration that
these words at least were written by the same hand; also
see for the same purpose Photo. Plates 51 and 52: The
expert counsel proceeded with the examples of the other
forms of " <y "•* - The next is the letter "ff ," counsel
having no table of that letter, used Photo. Plate No. 33;
the forms are taken from the Long Memorandum and
from various standards; see u jp " in "formation" in
Altered Will, line 82, and compare almost a counterpart
in E\S. 1, line 15, Belle Harris letter, word J' / or;"
this is a resemblance impossible to be accidental; Now
we turn to the small "JH ,/' — note the commencement
of the " <^ "in the signature to the. Will, and compare
with the " &">> i n " ama in the second line of the "Blue
Will," Respondent's Exhibit 23; the counsel says he
does not claim exact similarity but there is resemblance:
The small letter "^ ," the expert counsel presented
some peculiarities on the blackboard : "ns " "n? "
88 Coffey's Probate Decisions, Vol. 5.
"ft " "fu r1 ik J*- /'—sec Photo. Plate 35,— there is
an unusual form, loop in the main shaft, " ?v ** both
in the disputed documents and in the standards: As to
"** ," see Photograph Plate 38, simply a letter " ^ n
with a third stroke to make the 41 WT ," " tt \" xl fc\
7^
" :" these identities are marked : The. small "1" is
Of considerable importance : see Photo. Plate 39: expert
counsel Hyde went over this plate pointing out important
peculiarities: note the double "^^ ; " these are photo-
graphs of actual letters used in Piper Table 6: Photo. Plate
56 has some examples of u &L " in combination, and ex-
pert counsel Hyde asked the Court to compare " all" in
line 70, of Will, and "air in " Randall " in Randall Will;
the resemblances in termination of the ■' 1 s" in double
<■<€%/ " counterbalances the apparent discrepancies
alluded to by other experts : Expert counsel Hyde said
he would not spend much time on the small "m" because
the experts fTorton and Gumpel had so fully treated
this letter: The letter *'ii" has some remarkable pe-
culiarities, one feature is the wide separation between
the first upstroke and the second: Passing the " o, n
which Professor Horton dealt with, the Expert Counsel
Hyde took up Photo. Plate 41, containing illustrations of
the letter "jfr ; ,r in "■ ff> " of " development " in line
75 of the Will is found Dama's common form as may be
seen on Photo. Plate 41. There is no significance
in the " 4/ , " and expert counsel Hyde passed it
by and went to the small "r," of which there
are two forms: *-,*»*• ; there are 46 open
" *t »' forms in the Will against 05 closed " /l/ M
Estate of Dama. 89
forms ; approximately like ratios in all the writings ; the
Photo. Plate 42 shows correspondences as to tops and
also terminals, a yery important point. The word
"Barker" in line 78 of the Will " x/QeUt/i^^ "
and the mate to this in E. S. 11, line 10, in word "per-
fect, " this is a point worthy of particular attention: A
point which has escaped argumentative attention may
be alluded to here, Respondent's Exhibit 24, line 14,
" which he think benefit." The small letter "s" was
made in various forms: J 5 &j cd j but the prevail-
ing form is not common to the Will, vet there are exam-
pies in the Altered Will, "if there are any in the Will they
are rare ; but in the undisputed papers they are frequent;
the ordinary form is Occasionally found in the disputed
documents ; it is found so often in Dama's admitted
writings that it cannot be deemed to be a mere accident;
see "satisfied " and "expression" in Respondent's Ex-
hibit 128, marked examples of the Will form, and the
word " singers ; " in E. S. 6, line 19, " s " in " rooms. "
is a type of the Will; in E. S. 2, line 10, "s" in
" friends ; " Photo. Plate 43, figure 20, shows an " <P "
found in Will, compare Exhibit S9, line 13, same form,
even to the small upper oval loop, " ^f ;" fig. 23,
" %f , " in Altered Will and in Chase letter, Exhibit 73:
other examples ou| Photo. Plate 43: Respondent's Ex-
hibit 33, " <J " in "Mrs.": There are two forms of
«JC " « K : >>«3C,X : nrs t example in " Executri*^"'
in line 50 of Will, second form X- on line 59 of Will ; E.
S. 9, line 18, "E*^ press, " see Photo. Plate 44 in which
are examples of both, **- / and *-, latter in first Draft Will,
on line 10, " 1^/. " or " M^^-;" curiously enough both
of these forms are found in the Will: Now the numerals:
Mr. Gumpel has shown some of the characteristics, as
illustrated on the photographic plates: See Will, line
15, figure 2, counterpart in Brother Ben letter, April
20th, 1885 ; Another in Exhibit 100, line 5 ; the
90 Coffey's Probate Decisions, Vol. 5.
numeral 4 presents a very marked resemblance on
line 66 of Will and line 4 of Belle Harris letter,
E. S. 1 : the. figure qJ has a marked peculiarity,
the final curve like the bottom of his JO ' The
numeral 6 is alike all through ; in the 8 the feature is
the smallness of the lower loop, compare Long Memo-
randum and E. S. 2 ; the cipher shows similarities,
note the cent ciphers on line 34 of the Will : ($500. c * )
and line 35 Altered Will ($500.^2 ), and line 28 Draft
Long Memorandum ($500. o* ): these are three sets of
combinations, the brackets, the dollar marks, the figure 5,
the large ciphers, the cent ciphers and the dashes under
these last ; the manner of uniting the ciphers : Now
there is a point hitherto untouched Of considerable im-
portance, the dashes= : any one will do as an example,
take e. g. : on line 8 of Will — £f*rzj/Z= •' compare with
Respondent's Exhibit 120, envelope adressed to Forbes,
the word = <* / fl€L<fJ =* , Respondent's Exhibit 124, and
119, identical characteristics; it is a persistent habit, in
all respects the type of the writing of the Will ; and here
again referring to the Belle Harris letter, which has
given the expert counsel so many examples of similari-
ties : The dashes are remarkable as exemplifications of
persistency of habit; where the dash is long it is a wav-
ing line, see the Will, lines 24 and 52, see the Story Re-
ceipts, Exhibit 68, 69, 70, 71,72; these occur only in
formal documents, not in the letters : his habit of divid-
ing a word at end of line is peculiar, almost uniform
habit, thus in E. S. 3, line 20, pla at end, and tran
on line 27 : numerous examples exist-: The orthography
of Dama is an item that should influence the mind of the
Court in coming to a conclusion-, it is very important.
•After this exposition expert counsel Hyde undertook
to examine to some extent the evidence of the expert
Estate of Dama. 91
Doctor Piper and to point out errors in his examples and
inferences : The Doctor was asked a very important
question about the loops of the double 1, <i / &£ ," and the
terminals : the loops are. conscious characteristics and
they appear to have been put in ex industria by the
writer of the Will in his careful construction of the
instrument. Dr. Piper said that the dots on the "i" were
enough to amount to a demonstration to his mind that the
alleged Will was a forgery. How could it possibly be main-
tained that such a circumstance would be sufficient predicate
for such a conclusion, especially when it is shown that there
are different kinds of dots running through the papers? No
genuine document would be safe if such evidence or opinion
were accepted as enough to condemn it. Much stress was
laid upon the repetition of forms in the Will as indicating
imitation, but the same general feature may be seen in ex-
hibits that have come from contestant's undisputed writings,
the "Randall Will," among them, and the E. S. Exhibits.
Professor Young is undoubtedly an expert penman, very
clever as a teacher of penmanship, but certainly not an expert
in detection of handwriting, and his observations were of the
crudest character; his statement as to "slope" being suffi-
cient basis for opinion is in itself enough to impair the value
of judgment pronounced upon such premises. "Slope" is
by no means a test of authenticity; it is a very variable at-
tribute of a writer, as we all know from our own experience,
and dependent upon a variety of accidental circumstances,
such as temporary position of penman or other transient
cause. Professor Young's opinion is not amenable to analysis.
Professor Young says he was looking only for analysis of
differences, that he was not searching for resemblances; but
the true expert makes an examination of the entire instru-
ment with a view to finding out the preponderance of proba-
bilities; it is nothing but a balancing of probabilities, a
question of circumstantial evidence, and no expert can pro-
nounce a judgment or opinion worthy of respect unless he
have first thoroughly and impartially examined the paper
with an eye single to the ascertainment of exact truth. There
92 Coffey's Probate Decisions, Vol. 5.
are over 7,000 letters in these disputed documents, and the
court can recognize the comparative value of the evidence of
the experts for respondents when they have shown so many
precise parallelisms in undisputed documents with those in
dispute. The experts on respondent's side have made a most
elaborate examination and found all of these remarkable re-
semblances and the extraordinary identities, and in addition
the attorneys have made for themselves examination fortify-
ing and amplifying the conclusions of the experts. No mat-
ter how counsel may denounce these experts, their reasons
stand; let their reasons be assailed, for those reasons, being
the basis of their opinion, should alone be the object of as-
sailment, and those reasons are as repellant of assault as the
great wall of China ; they are impenetrable to any attack that
may be made upon the witnesses personally ; there is no value
in expert testimony except as it is supported by good and
sufficient reasons; there must be a substratum of facts sup-
porting the superstructure of opinion. Now, assuming this
as the rule of reasoning and the canon of criticism, let us
weigh the testimony of contestant's experts. The principal
witness for contestant was the expert Doctor Piper. His ob-
ject was to show that the Will was a forgery and he selected
his examples in subordination to this object; and in his draw-
ings on his Tables these examples are enlarged with the evi-
dent intention of emphasizing his purpose by the exaggeration
of differences not originally existing in the disputed docu-
ments; this was Dr. Piper's "method," so much relied upon
by contestant. These Tables do show difference, but how
has that difference been produced? That is the question to
which the court's attention is drawn. By selecting samples
of Letters as standards and then doctoring them in the process
of enlarged drawings on his Tables to lead to the demon-
stration which, "according to the method" of Dr. Piper, was
Estate of Dama. 93
that of forgery. This phrase, "according to his method,"
was the favorite phrase of this expert, Dr. Piper, to justify
his opinion: a curious "method" which prevented the cross-
examination of the witness and compelled the acceptance
of his ex cathedra judgments. It would be a monstrous
"method" which would permit so grave an issue to depend
for determination upon such testimony. The claim that Go-
dard or Mrs. Fannie Johnson may have forged this "Will, or
had the capacity to write it, is not worthy of serious consid-
eration ; neither could have done it. Even if it were not
abundantly established by affirmative evidence that this "Will
was the authentic emanation of the mind and hand of Luigi
Dama, it cannot be maintained that it was not, and this nega-
tive proposition the contestant was bound to enforce and he
lias not done so.
As the court has treated the argument of Mr. Hyde
in the nature of expert testimony, it may be well to con-
sider, in this immediate connection, the comments upon the
same subject by opposing counsel, who has shown himself
to be possessed of science and skill in this peculiar province.
Counsel for respondents having undertaken to show that the
paper upon which the alleged will was written was the same
as the ordinary "legal cap" to be found in any stationer's
shop and used for a score or more of years in the courts
and law offices, counsel for contestants called attention to the
watermark "Niantic" in the sample of common and ordinary
legal cap introduced to show the identity of the quality or
kind of paper, whereas in the "Altered Will" and in the
alleged "Will there is no watermark at all; hold up to the
light and examine and compare both and observe the differ-
ence ; it is remarkable that Dama should have departed from
his usual habit of using foolscap when the "Altered Will"
of November, 1885, and the alleged Will of May 8, 1887, were
94 Coffey's Probate Decisions, Vol. 5.
written — in only two instances have we examples of his using
legal cap. It is not believable that Dama ever laid hands
or eyes upon either of these feigned papers; it would have
been more adroit in the fabricator of these documents to have
omitted the mention of Mrs. Sara Barker Smith in the "Al-
tered Will" of 1885; this paper was concocted coincidentally
with the alleged Will of 1887. (See judge's manuscript notes
of argument, page 266, lines 3-19.)
According to this counsel, and notwithstanding the ex-
position of the opposing experts, the signature of Jules
Mathieu was proved by competent witnesses to his handwrit-
ing to have been simulated; his brother Gaston so testified
and his testimony was free and unpurchased, unlike that of
the other brother Alphonse. What occurred when this Will
was originally presented for probate? The witness Antonio
Bellini refused to swear that his name as appended to the
alleged Will was ever written by him ; he swore then that he
never signed the paper, but that the paper he signed then
near the bottom of the page had a red seal upon it hear the
bottom corner. Bellini said so on February 13, 1888,
and he has said so ever since; this one fact alone would be
sufficient, when it is shown that Bellini never wrote his name
in that way, as will appear from the samples of his writing
on page 3 of the judge's notes given on November 20, 1890,
at the request of the court.
Counsel for contestants, after the manner of an expert, gave
blackboard illustrations to enforce his claim that Bellini never
wrote the signature "Bellini Antonio" on the alleged Will,
and compared page 3 of the judge's manuscript notes with
the specimens written in court by Bellini, February 13, 1888.
This counsel animadverted strongly on the testimony
of the expert Gumpel and alluded to the circumstance that
Estate of Dama. 95
contestant was prevented by technical objections from show-
ing what was the original opinion of this expert in regard to
the disputed writings and why Gumpel came to abandon his
first opinion and turn over to the respondent when he could
not succeed in blackmailing the contestant. There seems to
be no doubt that Gumpel originally expressed an opinion
against the genuineness of the alleged Will, which largely
influenced counsel in instituting proceedings to revoke the
probate of the disputed document and the strictures of coun-
sel, however severe, are not without warrant ; but the validity
of scientific deduction is not to be tested by the tergiversation
«f the scientist in his moral conduct outside the record. His
individual deceit and duplicity in dealing with clients may
be established or admitted, but the scientific value of his evi-
dence is dependent upon the logical connection between
premises and conclusion; if it have any value at all, it is
nothing if not scientific. How far such testimony or evi-
dence deserves to be dignified by the term "scientific" is at
best a moot question, and remains for further consideration.
The court having propounded to counsel for contestants a
question, in the course "of the argument, as to a peculi-
arity in the signature "Bellini Antonio" in the alleged
Will,
96 Coffey's Probate Decisions, Vol. 5.
the counsel said the query v/as of great advantage
to him, as it had caused him to examine particularly the
reason for the remarkable departure from the habit of
the witness in the signature " % ' ^J^"^^^^ '* ^^ M
appended to the Will: Where did he get the pattern for
" tfQ&AtA/t/l/v*- 9 » And counsel undertook
with rare ingenuity to account for and illustrate how this
departure came about in the act of the imitator. Coun-
sel had a theory about the last page of the alleged Will
which to his mind was equal to demonstration ; it could
be observed that all the way through the alleged Will the
lines are adhered to, but when we come to the last page
there is a significant departure from the line first and
the- line second; it is written down and across in the
first, second, and third lines; this points to the proposi-
tion that it is evidently written to meet something ; " Bel-
lini" was written first and "Antonio, 222 farrelle,"
then "214 O'Farrell street" and after that "Jules
Mathieu," then " Luigi Dama;" and the counsel very
cleverly illustrated and "demonstrated" the correctness
of his theory, showing that the last lines were written
first and the upper clause to fit in; note the " Jx. " in
" Jules Mathieu" and observe the way in which the
/Si
11 «y/^ " fits into the bowl of the "
other features of great significance ; this shows that
the last lines were written first and the upper clause
Estate of Dama. 97
written to fit in; the peculiar "Jy* " in the address
** *%.<>- ^-^Vy ~*-s- "no where is there an
" / " like that in Bellini's specimens of writing and no
where does he add a terminal"^-"** to "O'Farrell;" the
" rs" in "O'Farrell" have many features common to Go-
dard's examples in the writing made in Court, this is very
remarkable, and is seen throughout his writings: the for-
" ° » in " c^T *' and the "*& " in
"in the Godard specimens and
in the subscription to the Will are an index finger to the
perpetrator of the forgery; these things taken in con-
nection with the other circumstances amount to a demon-
mation of the
9&&
stration; the dots on the "
no single signature""~of Dama . like that on line
87 'of Will and no rubric like that: The tJVv "
" in the signature on the Will
in th"e addition to Bellini's supposititious signature
without a break, different in his real signatures, e. g. t Re-
spondent's Exhibit 30 and page 3 of Judge's notes of
testimony : Counsel Kowalsky proceeded to point out
chirographic characteristics in the genuine' writings
of Dama and in the alleged Will and in the Altered
Will ; Duma's real writing had a persistent down-
ward* tendency or slope to the right, whereas in
the feigned papers the inclination is upward and the
same habitude is perceptible in the handwriting' of
Godard ; invariably upward in the latter and downward
in the former : Note the signature " Luigi Dama," the
Prob. Dec, Vol. V — 7
98 Coffey's Probate Decisions, Vol. 5.
" in " &£t4-<&&^" the tick to the left in
<7
the upper bowl of this " ^9:" must have been
of this " *5£."
added after the letter was formed, and the "
in " (V^/ C&^T^, cjf " the worst ever made,
if by Dama, and yet we are told that this was
Dama's " dress-parade " handwriting : Counsel Kowalsky
commented on the evidence of the witnesses for the
respondent on the question of general handwriting, Mrs.
Chase, Mrs. Cushman, Mr. Cummins, and Mr. Thomas
R. Knox, all of whom showed then, themselves signal
failures as they picked out the crudest fabrications, made
hastily, as genuine and pronounced papers admittedly
authentic to be false, of course such testimony is not
worth consideration : Counsel contrasted the quality of
the experts opposed to those on his own side, claiming
that they could not compare with Doctor 'Piper who
stands at the head and front of his profession and who
had demonstrated by the most accurate processes and the
true scientific methods the falsity of the disputed docu-
ments ; Doctor Piper's analysis here proves to a demon-
stration that the alleged Will was a forgery ; his testi-
mony is 'entitled to the highest respect. Counsel
proceeded to consider the internal evidence in the Will
of its faLsity and to show how utterly impossible it is that
tb<- decedent Dama ever had a hand in the construction
of it : After a partial analysis of the alleged Will down
to the letter " vp " in the word " papers," counsel took
up the " Blue " Will and noticed the formation of tlie
small " v£ " and ventured to declare that there could'not
be found u single disconnection in the "h's"of that
Estate of Dama. 99
document, — on further examination he found just one, —
this proved to him that Daraa's habit was to write with-
out lifting the pen ; the forger of the Will tried to follow
Dama's habits but at times he naturally fell into his own;
in the Contestant's Exhibit M-13, the "Randall" Will,
like characteristics of Dama's true writing are shown ;
now take the " Short Memorandum" and attention should
be paid to the small letters " -f%+ " "T^L*
) y
100
Coffey's Probate Decisions, Vol. 5.
(This is a crude tracing of the "Short Memorandum.")
;
•^
^
-5
^•!^'
1*
^ x « 1C v? ^ * * \
^ * c? ^ ^ ^ * •
X *•
^
^
^>%^c
Estate of Dama, 101
Almost every one of the other letters has been tacked
on afterwards; observe also the forms of " j^. : " In the
"Altered Will " note the " ^* ;" counsel claimed that
in all the "hs" that he pointed out are observed the habit
of Godard as is shown by his specimens on page 3 and 4
of Contestant's Exhibit G, also on pages 5, 6; the same
habit prevails as to the small letter " ^ " of same Ex-
hibit; Dama's habit is never to lift the pen, and Contest-
ant has shown that Godard's habit in these letters is to
lift the pen: Counsel next considered Gumpel's blackboard
illustrations and particularly the parentheses or brackets
( )
upon which he laid so much stress as demonstra-
tive of Dama's authorship of the Will, if these examples
are compared with the Godard specimens it will be seen
that his f ) brackets are similar: Mr. Hyde contended
that th.e assertion made by expert Professor Young that
the more a forger writes the better he writes, is not cor-
rect, but that the contrary is the truth, to wit, that the
more he writes the less does he retain ability to imitate,
thus denying the validity of the principle that practice
makes perfect. Counsel Kowalsky contends that the
principle is valid. The court's attention was called by
respondents to the genuine handwriting of Dama on
the envelopes as showing the care with which he
wrote at times and as evidencing the "dress-parade"
argument of respondent's counsel — contestant's counsel
also desired to dwell upon this theme and asked the
court to compare the envelope superscriptions with the
writing of the disputed documents; a mere superficial
glance at the disputed papers is enough to condemn
them ; when Dama wrote he sat with his glasses on lean-
ing over and close to the paper upon which he was writ-
L02 Coffey's Probate Decisions, Vol. 5.
mg, so that it. was impossible for Dama to have executed
this Will: The dots on the "J, ," which are considered
very important, and of which Dr. Piper has given more
than a hundred examples, making to his mind positive
proof that the paper was false: Compare the top of the
capital •' Jf " in the word " & crXXS " in the
Short Memorandum with the top of the " is "
'C^t^CC^C^ •" ill the specimens of
Godard's writing and note also particularly the signa-
ture of Godard in the band books of the Park Band :
Counsel proceeded to illustrate on the blackboard the
comparative peculiarities of the forger and of Dama:
The capital "oZ/ " in the alleged Will and in the Al-
tered Will have no counterpart in the admittedly authen-
tic papers, it is entirely unlike the capital ^/ in the
documents that have come from a pure sOMrce, such as
the "Randall" Will or the " Blue" Will: This is re-
markable, if the papers in dispute be honest: The
"Story receipts" Contestant never admitted, always
viewed with suspicion, they came iiito the case at a very
late day, like others that respondents used as stand-
ards: ' The two documents, the alleged Will and the
"Altered Will," were in date nearly two years apart and
yet there are identities in caligraphic execution of a most
extraordinary character if one be not taken as the fabri-
cated model for > the other; tracings show by exact
measurements that some of the words are studiously
copied the one from the other; compare the name "Sara
Barker Smith " in each, and sec the name " Smith " as
he wrote it in a letter to Mrs. J. P. Smith, an exhibit
from respondent's Bide. See other exhibits in same con-
nection: Counsel Kowalsky adverted to the religious
Estate of Dama. 103
style of the termination of the Short Memorandum, "the most
vicious forgery of them all"; and compare with the formal
style of the alleged "Will and the Altered Will, and then note
the manner in which he wrote the First Draft "Will and the
Second Draft Will, Respondent's Exhibit 4.
Witnesses as to Handwriting- Other than Experts.
Richard Emerson, secretary of the Park Band (page 22,
judge's notes), as to signature of Mathieu, did not think it
Mas genuine.
Isaac Clinton Coggin, general manager of Park Band, "do
not think that is Mathieu 's writing or Godard's; it looks too
finished." -
Frank Merlet, shoemaker, 222 'Farrell street, saw Mathieu
write often; the name on the Will is not in Mathieu 's hand,
in his opinion ; he never saw that paper before testifying.
Mi's. Ida M. Cummins, wife of Wm. T. Cummins, knew
Luigi Dama very well; took music lessons from him, three
or four times a week; was most deeidedlv a friend of his; he
was very careful in business matters, most conscientious in
his work, punctual to a dot in time; he was not much given
to talk ; her sister, Miss Belle Harris, was also a pupil ; a most
strong friendship existed between the professor and the wit-
ness ; she saw him write several times ; she attended school
fourteen years and had made a careful study of penmanship ;
had seen the professor write friendly letters and also receipts ;
he was always standing when writing; she did not think the
signatures attached to the papers shown to her (Respondent's
Exhibit No. 1 and the alleged Will) were in the professor's
handwriting; she remembered when he died, January 20,
1888; she heard of his death at 4 o'clock in the afternoon of
that day and she went there the next morning at half-past 9 ;
there were several ladies there, among others her sister Miss
Belle Harris, Mrs. Adley H. Cummins, and Mrs. Sara Barker
Smith came after she arrived; witness had no unkindly feel-
ing toward Mrs. Smith, had heard the professor say she was
a great worker but had little voice; the professor was a pe-
culiar combination of man, he was exceedingly enthusiastic
at times and then excessively passive — she had seen the pro-
fessor write about from five to eight times and then he was
104 Coffey's Probate Decisions, Vol. 5.
standing and -writing either on top of the piano or on the
mantel-piece. (See judge's manuscript notes, pages 26, 27.)
Wm. T. Cummins, the husband of the last-named witness,
knew Luigi Dama for just four years from January 20, 1884,
to January 20, 1888, four years to a day, the date of Dama's
death ; took lessons in vocal culture from him ; had many
business transactions with him ; saw him write ; saw him sign
his name to Respondent's Exhibits 37, 38, contracts in re-
spect to land between Dama -and Cummins ; this witness be-
lieved the alleged Will to be genuine; but he had stated in
his own house that the fact that four deeds of land which
Dama did not own were included in the Will was sufficient
evidence to his mind that it was a forgery, but he explained
why he had made such a statement; it was because for the
last three years he was almost a pariah in his own house-
hold because he was honestly convinced that the Will pro-
bated was genuine and had been accused of aiding to cheat
his sister in law, Miss Belle Harris, out of a fortune and he
had honestly striven to convince himself to the contrary, and
had come out to the court to examine the Will, and the re-
sult was to indelibly impress his mind with the conviction that
it was genuine. (See judge's manuscript notes, pages 70, 72,
73, 74, 75, 78, 79, 80.)
Miss Martha Belle Harris, a sister of Mrs. Ida M. Cum-
mins, had been a pupil of the deceased professor in vocal
music and voice culture; she had studied as a specialty draw-
ing; had been fully and thoroughly instructed in that art;
often saw Professor Dama write, perhaps thirty to fifty
times; had witnessed his signature before a notary; had re-
ceived letters from him ; had seen a great deal of his writings;
had been to the courthouse often and had examined the paper
probated February 27, 1888, and the paper found in the sare
d< posit box, "the Short Memorandum, Respondent's Exhibit
No. 1," and they are not in Professor Dama's handwriting;
the professor was rather careful in business, careless about
the house; .she took lessons for four years of him, at first
once a week, then twice and finally three times a week; did
many things Eor liim; took money for him to the bank; he
told her lie was a poor man when he married; she saw the
alleged Will on February 27, 1888, the day it was probated;
Estate of Dama. 105
she came to the court and examined the paper because she
thought there was something wrong; she had had a conver-
sation with the professor in which he told her that those
people who expected to get his money would be disappointed
and that he was now a poor man and would have to depend on
her as he had left her all his fortune. (See judge's manu-
script notes, pages 28, 31, 32.)
Mrs. Amelia A. Waterhouse, wife of Columbus Waterhouse,
had seen the professor write ten or twelve times and had
seen several of his letters; she did not think the Will or the
Short Memorandum were in his writing. (Page 37, judge's
notes. )
David Milton Ramsay, a former secretary and treasurer
of the Second Regiment Band from 1883 to 1886, knew Jules
Mathieu, who was a member of that band, and had seen him
write his name as many as two hundred times, and was
familiar with his signature, and he said, "as a matter of fact,"
that the name attached to the Will was not the signature of
Jules Mathieu; Mathieu 's manner in writing was slow and
labored; he was positive that it was not Mathieu 's signature
appended as a witness to the alleged Will ; his opinion was
based upon the comparison of handwriting with the signatures
he saw Mathieu make. (Page 41, judge's notes.)
D. S. Dorn, an attorney at law, an intimate friend and,
to some extent, a legal adviser of the deceased, had seen Dama
write very frequently, more than twenty times surely, and
was well acquainted with his handwriting; Mr. Dorn had
examined the alleged Will very carefully before; the hand-
writing was very similar to that of Professor Dama, but in
Mr. Dorn's opinion it was not his handwriting; "it is a for-
gery"; it was very plain to Mr. Dorn that it was not written
by Dama; and the "Short Memorandum," Respondent's Ex-
hibit No. 1, Mr. Dorn declared was most decidedly not the
handwriting of Professor Dama, "it is a strained imitation
of his style of writing and of composition." (See judge's
manuscript notes testimony, 45-47, 50-53.) Further and
fuller reference to Mr. Dorn's testimony will be made herein-
after.
106 Coffey's Probate Decisions, Vol. 5.
Albert M. Whittle, paying teller of the San Francisco Sav-
ings Union, testified that Luigi Dama opened an account
there October 4, 1876 ; the witness believed from comparison
with bank "token book" signatures that the name signed
to the alleged "Will was the genuine signature of Luigi Dama.
(Page 71, judge's notes.)
Alphonse Mathieu. a brother of Jules Mathieu, deceased,
testified that the signature to the alleged Will was that of his
brother "Jules Mathieu"; he had often seen him write, was
familiar with his handwriting; went to school with him for
five years.
Louisianna Mathieu, wife of the witness Alphonse, knew
the late Jules for thirteen years and had had much cor-
respondence with him; saw him actually write several
times; knew his handwriting, and the signature and ad-
dress
were in his handwriting.
Gustav Folte, paying teller of the German Savings and
Loan Society, testified that deceased Dama was a depositor
in that bank and believed from his acquaintance with the
signature in the depositor's book that the name "Luigi Dama"
signed to the alleged Will and also to the "Short Memoran-
dum" were written by the deceased.
Clara E. Story, wife of D. W. C. Story, had lived in the
house of Professor Luigi Dama and rented rooms of him ; this
witness produced receipts given by the professor for room
rent, marked Respondent's Exhibits 67-72; she paid the rent
herself; the Storys lived there in 1884; the receipts indicate
the time.
The testimony of the Reverend Joseph Worcester should be
considered as a whole, in another connection, for upon the
question of handwriting it lacks precisenoss and positiveness;
he says that he does not think that his opinion is of any value,
"tlr r (semblance creates the impression that it is Dama's sig-
nature" on the alleged WilL
Estate of Dama. 107
Martha E. Chase is a witness from away back, and her
testimony was objected to by contestant because of the re-
moteness of her acquaintance with the handwriting of Dama;
but the objection was overruled. This lady identified two
documents, Respondent's Exhibit 43 and Respondent's Ex-
hibit 73 ; the first comprised a letter written by her to Pro-
fessor Dama with his draft of answer on the blank back of
same, and the second was the answer dated February 21, 1884,
received by her in the envelope addressed "Miss Martha E.
Chase, Santa Rosa Seminary, Santa Rosa, Cal.," of which
seminary the witness was principal ; she believed the disputed
writings to be genuine ; she had known the deceased Professor
prior to 1867 and afterward ; first knew him in Stamford,
Connecticut ; had seen him write, sometimes when she was tak-
ing music lessons; did not remember ever to have seen him
write a letter; he had tried her voice here, but she did not
take music lessons from him in California.
A. H. R. Schmidt, cashier of the German Savings and Loan
Society, formerly assistant cashier, knew Luigi Dama as a
depositor in that institution, and was prepared to say from
what he had seen of his signature that the name "Luigi
Dama" signed to the alleged Will was the genuine handwrit-
ing of the decedent Dama. (See pages 100, 101, judge's
notes.)
Sophie Buhne knew Professor Dama and took lessons from
him from 1S81 to 1885, every day except during her vaca-
tion, which was usually in June, and when the professor paid
a visit to the east; she recognized a paper presented to her
(Respondent's Exhibit 44) as a letter from her to him, dated
at San Francisco, Sept. 3, 1883, and his draft reply dated
Boston, Sept. 18, 1883 ; when Miss Buhne began taking lessons
from him she had lost her voice and under his instructions
she regained it entirely; she knew Sara Barker Smith, who
took lessons of the professor and she had a high soprano
voice; she identified Respondent's Exhibit 88, a receipt of
Luigi Dama to Miss S. Buhne, November 3, 1884, and Re-
spondent's Exhibit 89, a letter of L. Dama to Miss Buhne,
August 29, 1885, as in the handwriting of the deceased pro-
fessor; all the letters received by her from him had been de-
stroyed; she identified Respondent's Exhibit 4, draft Will
108 Coffey's Probate Decisions, Vol. 5.
in which "Miss S. B." is mentioned, as Professor Dama's
handwriting; the Respondent's Exhibit 18, Mem. to Miss
Sophie Buhne, was to her knowledge written by the professor ;
the envelope to Exhibit 89 was destroyed, for what reason
she could not recall, but' she retained the letter, which she
found a few months before date of testifying (March 13,
1891), because after Professor Dama's death she thought more
of it, as she was very much attached to him on account of his
being her teacher; she thought the body of the alleged Will
and the signature were in the handwriting of Dama. (See
pages 105 and 106, judge's manuscript notes.)
Frank Davey, a photographer, explained how he took a
photograph of the Altered Will; it was taken January, 1889
(the "Altered Will," Respondent's Exhibit No. 3) ; the pin-
holes were made by pinning it against the wall for purpose
of photographing; to his memory there were no pinholes in
it when he photographed it; if there were any other pinholes
in the paper they would be shown in the negative ; when the
paper was turned over to be photographed on the other side
it had to be repinned. (See page 109, judge's Dotes.)
This pinhole evidence is esteemed of great importance by
the counsel for contestants, and it may be well in this place to
note his comments upon the significance of these minute per-
forations. He insisted in his summing up, that there were
pinholes in that paper before it went to the photographers,
as is shown by the paper itself, and they were not all
made by the artist in photographing the paper; he thinks it no
wonder that respondent's counsel squirmed and floundered in
striving to explain away these phenomena, these little pinholes,
that speak with mute eloquence, with tongues of fire that like
living flames let in lurid light upon the iniquitous nature
of the whole business, like molten lead poured through the
corporal structure it exposed the entire nefarious transaction ;
these little pinholes, counsel for contestant contended, were
of great significance and it was beyond the ingenuity of the
most ingenious and skillful counsel to destroy the effect of
such momentous evidence; these little pinholes are there to
stay with all their consequences.
Estate of Dama. 109
Thomas R. Knox, a shorthand reporter, officially connected
with the courts, a pupil for a time of the deceased, who had
frequently seen him write, was of opinion that the disputed
documents were in the handwriting of Dama. (See pages
126-131 of judge's notes.) It may be worth while hereafter
to deal with other portions of this witness' testimony than his
opinion upon the handwriting, but in this place I do not
care to more than indicate a possible future allusion to the
abridgment of Knox's cross-examination on page 130, lines
3-18. judge's manuscript notes.
The Views of the Court upon Expert Evidence.
I have striven to exhibit, in the foregoing epitome of expert
evidence and counsel comment, the variant and opposing views
entertained upon the same subject matter. There is an amus-
ing, if aggravating, arrogation of absoluteness in judgment
upon a proposition of which certainty is not predicable. Ex-
pert Hopkins is the only witness of his class who acknowledges
himself liable to err in process or result. He, alone, thinks
that he may be mistaken. Each of the others is cock-sure
of the correctness of his conclusion. But all, differing as
they do, cannot be right ; and it is worth while to ' ' consult
the authorities" upon this vexed question of expert and opin-
ion evidence as to handwriting. In Lawson's Work on Ex-
pert and Opinion Evidence, page 277, it is said that the
strongest evidence of the genuineness of handwriting is the
testimony of the alleged writer himself, and next to this comes
the testimony of a witness who saw the very instrument exe-
cuted and is able to identify it. The competency of such
evidence is never disputed. But it is obvious that there must
be other and different modes of proof — modes which must of
necessity be resorted to when the former are not attainable
and likewise whenever it is sought to contradict the testimony
of the alleged writer, or that of the actual witness. By na-
ture and habit individuals contract a system of forming letters
which gives a character to their writing as distinct as that of
the human face. In handwriting, as in other arts and in
literature, "the style is the man"; and yet there are curious
contrarieties. In determining the question of authorship of
a writing, the resemblance of characters is by no means the
110 Coffey's Probate Decisions, Vol. 5.
only test. The use of capitals, abbreviations, punctuation,
mode of division into paragraphs, making erasures and inter-
lineations, idiomatic expressions, orthography, underscoring,
style of composition, and the like, are all elements upon
which to form the judgment: See Taylor's Ev., sec. 1669
(sec. 1871) ; The Handwriting of Junius (Twistleton &
Chabot's ed.) ; The Tichborne Trial, Charge of Chief Jus-
tice Cockburn (London ed.), vol. 2, pp. 762, 768, 774, 779,
783; Da Costa v. Pym, Peake's Additional Cases, 144; 2
Stark. Ev. (Metcalf's ed.) 515; Cowper's Works (letters),
vol. 5, p. 217 (ed. 1836) ; United States v. Chamberlain, 12
Blatchf. 390, Fed. Cas. No. 14,778; Brooke v. Tichborne, 2
Eng. L. & Eq. 374, 5 Exch. 929; Reid v. State, 20 Ga. 681,
682, 683; 1 Whart, Ev., p. 656, note, and sec. 706; 1
Greenl. Evidence, sec. 58a. But see Waddington v. Cousins, 7
Car. & P. 595. For quotation from Cowper's letters, see
Ram on Facts, 4th ed. (edition of 1890 is the copy I use for
reference), page 69. "Manifold as are the points of dif-
ference in the infinite variety of nature in which one man
differs from another, there is nothing in which men differ
more than in handwriting; and when a man comes forward
and says, 'you believe that such a person is dead and gone,
he is not, I am the man,' if I knew the handwriting of the
person supposed to be dead, the first thing I would do would
be to say, 'sit down and write, that I may judge whether
your handwriting is that of the man you assert yourself to
be'; if I had writing of the man with whom identity is
claimed, I should proceed at once to compare with it the
handwriting of the party claiming it. For that reason I shall
ask you carefully to look and consider the handwriting of
the defendant, and to compare it with that of the undoubted
Roger Tichborne, and with that of Arthur Orton": Tichborne
Trial (Bex v. Castro), Charge of Chief Justice Cockburn
(London .•(!.), p. 762; Buller's Nisi Prius, 326; Peake's Ev.
102; 2 Evan's Pothieron Obligations (3d Am. ed.), 156; Cow-
per's Works (loiters), vol. V, p. 217 (ed. 1836). "Men are
distinguished by their handwriting as well as by their faces;
for it is seldom thai the shape of their Letters agree, any more
than the Bhape of their bodies. Therefore the likeness pro-
duces the presumption that they are the same": Buller's
Estate of Dama. Ill
Nisi Prius, 236; 2 Evan's Pothier on Obligations, 3d Am.
ed., 156. "The general rule which admits of proof of hand-
writing of a party is founded on the reason that in every
person's manner of handwriting there is a peculiar prevail-
ing character which distinguishes it from the handwriting of
every other person ' ' : Strong v. Brewer, 17 Ala. 706, 710. ' ' The
handwriting of every man has something peculiar and distinct
from that of every other man, and is easily shown by those who
have been accustomed to see it": Peake's Ev. 102. "Hours
and hours and hours have I spent in endeavors, altogether
fruitless, to trace the writer of the letter that I send, by a mi-
nute examination of the characters, and never did it strike me
until this moment that your father wrote it. In the style I
discover him — in the scoring of the emphatical words — his
never-failing practice — in the formation of many of the let-
ters, and in the adieu, at the bottom — so plainly that I could
hardly be more convinced had I seen him write it": Cow-
per's Works (letters), vol. V, p. 217 (ed. 1836). Conclusions
drawn from dissimilitude between the disputed writing and
authentic specimens are not always entitled to much consid-
eration; such evidence is weak and deceptive, and is of little
weight when opposed by evidence of similitude. The reason
why dissimilitude is evidence inferior to similitude is that it
requires great skill to imitate handwriting, especially for sev-
eral lines, so as to deceive persons well acquainted with the
genuine character, and who give the disputed writing a careful
inspection; while, on the other hand, dissimilitude may be
occasioned by a variety of circumstances — by the state of the
health and spirits of the writer, by his position, by his hurry
or care, by his materials, by the presence of a hair in the nib
of the pen, or the more or less free discharge of ink from the
pen, which frequently varies the turn of the letters — circum-
stances which deserve still more consideration when witnesses
rest their opinion' on a fancied dissimilarity of individual
letters: Young v. Brown, 1 Hagg. Ecc. Rep. 556, 569, 571;
Constable v. Seibel, 1 Hagg. Ecc. Rep. 56, 60, 61 ; Murphy v.
Hagerman, Wright (Ohio), 293, 298; 2 Phillips on Ev. (Cow.
& Hill's Notes), 608, note 482; Taylor Will Case, 10 Abb. Pr.,
N. S., 300, 312 ; Tome v. Parkersburg R. Co., 39 Md. 3S, 93,
17 Am. Rep. 540.
112 Coffey's Probate Decisions, Vol. 5.
It is held in Texas that the fact that comparison of hand-
writing has been permitted by statute does not make it any the
less a feeble and unsafe kind of proof.
In a Michigan case it was said: "Everyone knows how un-
safe it is to rely upon anyone's opinion concerning the niceties
of penmanship. The introduction of professional experts has
only added to the mischief instead of palliating it, and the re-
sults of litigation have shown that these are often the merest
pretenders to knowledge whose notions are pure speculation.
Opinions are necessarily received, and may be valuable, but
at best this kind of testimony is a necessary evil. Those who
have had personal acquaintance with the handwriting of a
person are not always reliable in their views, and single sig-
natures, apart from some known surroundings, are not always
recognized by the one who made them. Every degree of re-
moval beyond personal knowledge into the domain of what is
sometimes called, with great liberality, scientific opinion, is a
step toward greater uncertainty, and the science which is so
generally diffused is of very moderate value. ' ' In another case,
Mr. Justice Grier said: "Opinions with regard to handwriting
are the weakest and least reliable of all evidence as against
direct proof of the execution of an instrument. Generally,
when the jury have acknowledged signatures for comparison,
they can judge as well of the character of the disputed signa-
ture as if they had seen the party write a hundred or a
thousand times. It is but an opinion formed from comparison
simply. The witness compares with his remembered original
— the juror has actual original before his eye. Tell a man
that a person's name, with which he is acquainted, has been
forged, and nine cases out of ten he will be astute enough to
fancy he discovers some marks of it. If it be a good forgery,
very few men are able to detect it; and hence other witnesses,
not prepared beforehand to pronounce it such, will very truly
say they would take it to be his signature. But there may
possibly be such glaring marks of forgery on the face of an
instrumenl as to condemn it, especially if proved by witnesses
of doubtful character, and connected with other suspicious
circumstances as to the persons and place where it had its
in, and these marks may be so strong and circumstances
SO convincing that a paper may be pronounced a forgery in
Estate of Dama. 113
the face of the testimony of witnesses whose previous char-
acter cannot be otherwise impeached": Turner v. Hand, 3
Wall. Jr. 115, Fed. Cas. No. 14,257. "The evidence of the
genuineness of the signature based upon the comparison of
handwriting and of the opinion of experts is entitled to proper
consideration and weight. It must be confessed, however, that
it is of the lowest order of evidence and of the most unsatis-
factory character": Borland v. Walrath, 33 Iowa, 131. "We
believe that in this opinion experienced laymen unite with
members of the legal profession": Whitaker v. Parker, 42
Iowa, 585. "It is so weak and decrepit as scarcely to deserve
a place in our system of jurisprudence ' ' : Cowan v. Beall, 1
McA. 221.
In the American Law Review (the old quarterly) for July,
1870, volume IV, pages 641-655, is an interesting article upon
the Howland Will Case, which contains so much that is con-
current with my own independently formed views and experi-
ence that I refer to it.
It is for the extraordinary conflict of expert testimony dem-
onstrating how completely scientific opinions may differ, that
this case, after the interest awakened by the magnitude of
the struggle has died away, will be most famous in the annals
of the law. Here were three signatures of Sylvia Ann How-
land : one to her will of 1862, Exhibit 1 ; one to each duplicate
second page, Exhibits 10 and 15. That to the will was con-
fessedly genuine. But it appeared upon superposing the other
two over this that the covering was so exact, letter for letter,
stroke for stroke — "10" (duplicate "second page" given to
the niece) somewhat closer than "15" (that kept by the aunt,
and found in the trunk) — and that not merely this covering
existing, together with identity of all the spaces between the
letters and the words, but that the locality on the paper and
the distance from the margins of the signatures so nearly
coincided, that the defendants, supported by the opinion of
some of the best experts in the country, were led to bring for-
ward the theory that this extraordinary coincidence was not
the result of chance, but of design. They claimed that these
signatures had been forged to these papers by the complainant,
by tracing upon the original signature to the will.
Prob. Dec, Vol. V— 8
114 Coffey's Pjrobate Decisions, Vol. 5.
It was, a priori, beyond the bounds of probability, they ar-
gued, that this coincidence of precise covering could occur, in
short, practically an impossibility ; but infinitely incredible,
that just the signature the plaintiff wanted should match the
only one she had. They claimed that the signatures 10 and
15 bore in themselves marks of tracing, and produced a large
number of bills of lading signed by the deceased, none of
which, they claimed, bore the characteristics of the disputed
signatures. This issue was fully and squarely met by the
complainant's counsel. They answered that the idea that no
two signatures could cover was false in theory and in fact,
and they produced signatures of many well-known persons
which the}' claimed covered better than the signatures of the
deceased lady. They met expert by expert. Wall street and
State street furnished their most eminent judges of hand-
writing to the one side or to the other. The rival "commer-
cial colleges" sent presidents and representatives, each equally
positive, and ready to support by oath the truth of their sev-
eral opinions. The Coast Survey sent on from "Washington
one of its most eminent members, Professor Benjamin Peirce.
The science of photography was exhausted in the variety and
number of pictures of the disputed signatures. Recourse was
had to the magnifying glass. Numberless exaggerated images
of the words "Sylvia Ann Howland" were manufactured,
and appear upon the files of the court in immense books of
exhibits; and not merely of these signatures, but of the many
which are claimed to cover as well as the disputed signatures,
and of other signatures of the testatrix of the will itself, of
the papers 10 and 15. Learned chemists were called, who
gave their judgment of the ink. Skilled engravers, habituated
in the art of tracing, pored over the strokes and curves of the
letters. Harvard University contributes to the list of wit-
nesses three of ils mosl distinguished names. The most cele-
brated mathematician of the country is invoked, who states
the doctrine of chances with a precision and solemnity thai
astounds the uneducated understanding. The learned physi-
cian, Oliver Wendell Holmes, so l'anied both in poetry and
science, applies hia microscope and gives his opinion. The
naturalist, Agassiz, whose name on both continents is second
only to Humboldt's, whd, as he testified, began natural his-
Estate of Dama. 115
tory as a child, and was still (1870) a student, gave his anal-
ysis with characteristic zeal and earnestness. The testimony
of witnesses developed weeks of laborious preparation. Be-
fore they came on the stand many of these witnesses passed
months in the closet, working sometimes ten hours a day,
comparing, analyzing, photographing, magnifying, doing
everything that science and experience could suggest to fit
themselves to give a correct opinion. They produced the result
of their labors in the elaborate magnified exhibits, which,
bound in large volumes, are lasting proofs of their diligence
and. ingenuity. Not a curve in a letter, not a downstroke or
an upstroke of the pen, not a dot of an "i," or a cross of a
"t," or a waver of the hand, but what was subjected to the
most searching examination under powerful microscopes ;
while essays were read upon the philosophy of handwriting in
theory and practice. Page follows page of minute criticism
of hair-lines, loops, curves, turns, body strokes, and so on, to
utter weariness. Yet, after all, with what result ?
No slur could be cast upon the integrity of any of these
gentlemen. They had no interest in the result of the suit ;
their characters were above suspicion; truth was primarily
their object. Did that old woman beyond the grave sign those
two papers? On this side of the grave the niece alone knows.
The niece says she did. But for this, if an untruth, she is to
have millions. Can science give her the lie? So scientific men
pore over these nine little words for many months. They apply
to them the many instruments that the laboring brains of for-
mer scientific men have invented; and the scientific data of
past years. Yet, with all this, they stand ranged on one side
and the other, differing from and contradicting one another,
not only on the main question of the forgery, but in a thou-
sand more minute but still important particulars ; equally con-
fident of adverse opinions, until the brain of the unprejudiced
reader of this mass of conflicting opinions swims with confu-
sion, and he asks, What is truth ? Thus the result of so much
labor of experts — their skill, their ingenuity, their patience,
their anxiety, simply demonstrates to the profession their
inutility as witnesses in a court of justice. Fact is untrust-
worthy enough. Of a single occurrence, a hundred different
accounts may be given in good faith by honest spectators.
116 Coffey's Probate Decisions, Vol. 5.
But when we come to opinion, who shall state the limit of
discrepancy, or dare to name the number of conflicting the-
ories? Let it not be understood that it is desired to cast
reflections upon science, nor upon the curious and ingenious
means which it supplied — unhappily not for the elucidation
of this case. Let anyone take the testimony of either one or
the other side to this controversy, and he will marvel at the
precision with which it was possible, by the resources of sci-
ence, to supply the conclusions which were wanting to facts.
Let anyone read only the evidence of the contestants, and,
however little prone to moralize, he will wonder at the appli-
ances of modern art which has detected, both by mathemat-
ical demonstration, and by an analysis of handwriting and
chemical investigation very nearly amounting to mathematical
demonstration, a hidden crime, and made it as patent as the
daylight. This, he will say, is providential. No link is want-
ing. The discovery of the footprint, the trace of blood, bears
no comparison to this. Hereafter, the curious stories of Poe
will be thought the paltriest imitations, when real life affords
such an instance of the detection of guilt by the unanimous
testimony, not of eye-witnesses, but of bankers, photog-
raphers, writing-masters, mathematicians and naturalists. So
positive is their testimony, so exact in its details, so nicely
does one fact fit the other, and so curiously is each explained
and reconciled, that the eye will almost see the forger holding
to the window the genuine document, folding over it the
spurious paper, wetting her pencil, and tracing the words,
and then covering the pencil tracings with ink. But let the
testimony of the respondent's experts alone be read, and the
picture is wholly changed. The providential detections of
science become unjustifiable slanders; it is the old woman
who has traced, with trembling fingers, her fixed and formal
autograph. The genuineness is beyond a doubt, and is patent
iipoD a comparison with the aunt's former undisputed signa-
tures. The si^ns of tracing are but, the nervous trembling
of old age; the curious covering, the not unusual result of
writing Erom the wrist, in a cramped position, by an aged
woman, unused for many years to write more than her signa-
ture.
Estate op Dama. 117
Who, then, shall decide when such doctors disagree, or do
more than review their testimony, and wonder, on the one
hand, at its ingenuity, its research, and its elaboration ; on
the other hand, at its curious discrepancies, its multifold and
manifold contradictions? (See, also, on same subject the
American Law Register, Sept. 1890, pp. 553, 562.)
The system, as it now stands, of retaining an expert, is much
the same as retaining a lawyer. Neither is under any obliga-
tion to devote his time, as is every eye-witness, to the party
requiring his services. Both lawyers and experts have knowl-
edge, skill and experience, which must be bought and paid for.
It is in both cases their property, their capital, their means
of earning a livelihood. A litigant, approaching the trial of
a cause where expert testimony is required, secures the ser-
vice of his experts much as he does his counsel. He takes
their opinion, and if it is favorable to him (and what is most
remarkable, it is almost always favorable to him), the experts
are almost, if not quite, as much in his employ as his counsel.
Honorable men, whether of the legal or other professions, go
only to a certain mark in identifying themselves with the in-
terests of their clients. But the expert not infrequently goes
further than the lawyer. He is familiar with the preparation
of the case; he is present at consultations; his own evidence
is carefully prepared, and noted ; his sympathies are enlisted ;
he acquires a belief in the justice of the side upon which he
is called, and of the injustice of the other. Upon taking the
stand, the counsel for his employer becomes his personal pro-
tector, that of the adversary his personal assailant; and the
assailant of what are dearer to him, his favorite scientific the-
ories. His opinions are turned and twisted, and subjected to
a searching cross-examination. Perhaps covert imputations
are cast upon his motives. He is unwilling to recognize the
fact that he is to receive pay for his services. It seems to de-
grade him to acknowledge that anything but a love of truth
induces him to testify ; while, as a matter of fact, if truth
only — or the reward of virtue, which the proverb gives — ■
should be held out to him as an inducement to appear on the
witness-stand, he would decline to be a witness. Properly
enough, too, for he has a right to be paid for his time and
skill. In short, he is in a false position. He wishes to appear
118 Coffey's Probate Decisions, Vol. 5.
a judge. Circumstances have made him a partisan. No one
can read the cross-examination of some of the experts with-
out feeling keenly the defects of the present system. One of
the witnesses, doubtless a perfectly fair-minded man, saj r s,
with a sort of shame (false it is thought), when pressed about
the compensation that is honestly due him, that the ' ' responsi-
bilities of his situation forbid his giving his mind to it." The
compensation of another witness has reached $1,000 in one
case, and $500 in a second. ( Rowland Will Case.) But
throughout the experts, when questioned, generally evade the
question of pay, instead of frankly acknowledging that this
is an element, and a legitimate element, in their services un-
der the present system. As long as this lasts, the only true
position for them to take is that of persons to whom a question
of opinion has been presented, and who, having given a cer-
tain opinion, are retained by the parties in whose favor they
have given it, to carefully prepare that opinion, with its rea-
sons, and state it to the tribunal before which the case is tried,
with as much freedom from prejudice in favor of their em-
ployers on other points of the case as poor human nature will
permit. These remarks fit right into the body of expert and
opinion evidence in this case. Experts should be considered
and treated as advocates rather than as witnesses, and dealt
with as I have undertaken to deal with expert Counsel Hyde
in condensing his argument.
Internal Evidences of Character of the Will.
In judging the internal evidence of the authenticity or
falsity of the document in dispute, it is important to consider
the property possessed by testator at the date of the Will and
the disposition made of it and the purpose and object of the
testamentary design. What property did Dama possess and
own when he made the Will?
Diodemus Dorn's Description of Dama.
B( fore proceeding in the attempt to answer this question,
it may be well lo take a view of the composite character of the
man himself, as furnished by the evidence, and perhaps best
slated in the description of the witness, Diodemus S. Dorn.
Estate of Dam a. . 119
Mr. Dorn knew Luigi Dama very well, was intimate and
friendly with him; had innumerable conversations with
him on every variety of subject from the North Pole down;
Dama spoke to Dorn about his family and property;
Dama was by nature a miser; he was formerly an opera
singer; when he came to America he taught vocal music; he
wanted to marry one of his pupils, the lady whom he did
afterward marry, but she married someone else, as they often
do, a wealthy man in the south ; her husband died, and Dama
renewed his attentions, and she, having had more experience,
accepted him; Dama often went over his affairs to Dorn and
liked to dwell on the details of his property ; she was the finan-
cial member of the firm ; Dorn drew several Wills for Dama,
who was a kind of a crank on the subject of Wills ; Dorn drew
one for him in 1885 ; it took them about a year to draw that
Will; Dorn could not recollect when the second Will was
drawn, but it was about the time Dama went east ; the last
conversation Dorn had with Dama was a week or two before
he died; Dama sent for Dorn, who used to joke a good deal
with him about his pupils, and on this last occasion Dama
spoke of Mrs. Smith; Dama was a very sarcastic man, and
he compared her voice to that of a cow in a cornfield ; he also
spoke of Miss Belle Harris' voice; on another occasion when
Dorn called again subsequently Dama spoke of the Will that
Dorn had drawn and said that it was in the Safe Deposit
Company; Dama asked Dorn if it was all right, and Dorn
replied that it was if it had been properly executed and duly
attested ; all the Wills were pretty much the same ; an institu-
tion in Italy, the " Stabilimento dell' Annunziata, Naples,"
was the beneficiary of the bulk of his property; this was a
musical institute, as Dorn understood; Dama often said that
he was a Catholic, and the man that was born a Catholic al-
ways died a Catholic, and although he did not share in the
prejudices of the church against secret societies, yet he left
something to a friend in Italy, an intimate Italian friend, who
would make provision for masses for the repose of his soul;
in the Wills drawn by Dorn the Reverend Joseph Worcester
and Columbus Waterhouse were named as executors; Dama
was very much attached to the memory of his wife; he always
kept fresh flowers under her picture ; he left two lots in Red-
120 Coffey's Probate Decisions, Vol. 5.
wood to Reverend Mr. Worcester for the benefit of his church,
of which decedent's deceased wife had been a member; Dora
made four drafts of Will for Daraa ; two about 1885, which
he submitted to Dama ; this was before he went east ; after-
ward, when Dama returned, he felt more kindly toward his
wife's family in the east, and Dorn drew another Will in
which Dama made a small bequest to them, and also to Miss
Harris; each time Dorn drew a Will for Dama the lalter went
over everything he had and very frequently at other times.
Dama was a man who was very cynical — not cynical but sar-
castic — and made mam- remarks concerning his pupils and
their powers and capacities ; he spoke of Mrs. Smith as hav-
ing no vocal power or capacity.
What Property did Dama Own at Date of Will?
To return now to the question of the property possessed
and owned by Luigi Dama at the date of the alleged Will,
May 8, 1887. It is asserted by counsel for contestants that
Dama never owned exactly eleven government bonds, at the
time of making the Will only $5,000 in bonds and before he
had thirteen $1,000 bonds; it is claimed by contestants that
the person who forged the Will slipped up on this point, as
he did on some others; the forger knew he had bonds of this
kind, but did not know the exact figures. Is it possible,
queries counsel for contestants, that a man of Dama's intelli-
gence would attempt to dispose of property he did not own?
Or that a man of integrity would write down a deliberate lie in
so solemn a document? This is a very important factor in
determining this issue of forgery. This provision of the al-
leged Will challenged attention by reason of its inaccuracy
and nonexistence, wherein he undertook to give what he did
oot possess; it is inexplicable, contends the counsel for the
contestants, why he should have attempted to bequeath what
he did qo1 own, upon any hypothesis consistent with
his mental competency. Dama knew very well, no man better,
what he owned and what he did net own, and this \
bequesl cannol be explained away on the ground of the testa-
tor's idiosyncratic character. Was it a vain bequest. Did he
ess or own on .May 8, 1887, eleven (llj government bonds
Estate of Dama. 121
of the United States of America, nine of one thousand dollars
each ($1,000) and two of five hundred each ($500), as de-
scribed in clause Fourthly of the alleged Will, and in clause
Fourthly of the "Altered Will," November 1, 1885, in the
same terms? These are described in the same way in the
"Long Memorandum," Respondent's Exhibit No. 2.
Let us trace the history of these bonds, deemed of determi-
native influence in this controversy by the contestant's coun-
sel.
• The History of Dama's Bonds.
According to the evidence of the Boston Maverick National
Bank officers, as developed in their depositions, there were
sold to Benjamin Randall United States bonds of the par
value of $11,000, as follows:
$2,000, April 22, 1880 ;
2,000, October 30, 1880 ;
2,000, March 2, 1881; *
1,000, March 12, 1881 ;
4,000, May 12, 1882.
These bonds were in denomination and number as follows:
Nine $1,000 bonds, numbered 41,767, 59,792, 84,021, 56,282,
95,947,88,901,2.838,8,777, 107,255, and four $500 bonds num-
bered 14,525, 1,875, 16,111, 14,737. These bonds are the same
numbers purchased by the bank from Luigi Dama May 18,
1885, as appears from the original entries of the transactions
on the books of the Maverick National Bank, in payment for
which the bank gave its check in favor of Dama No. 7,237 for
$13,500, payable at Anglo-Californian Bank, San Francisco.
It appears also from the same source that on May 29, 1885,
the Maverick Bank purchased of Luigi Dama $6,000 par value
N. O. Jackson and Great Northern R. R. bonds, numbered 565,
566, 567, 568, 569, 570, six bonds; and on the same last-men-
tioned date he bought of the bank $6,000 par value United
States bonds five $1,000 each, numbered 67,167, 85,942, 69,581,
7,711, 6,522, and two $500 bonds numbered 14,524, and 25 ; on
the 10th of June, 1887, Dama sold to the same bank one $1,000
United States bond, numbered 85,942, of the same lot pur-
chased by him May 29, 1885 ; these constituted all the trans-
actions between Luigi Dama and the Maverick National Bank,
122 Coffey's Probate Decisions, Vol. 5.
according to the depositions of Starr and Kelsey, officers of
the said bank, witnesses examined on behalf of the respondent.
Now, let us examine the evidence of Benjamin Randall, a
witness for contestant, in his answer to the twelfth, thirteenth
and fourteenth direct interrogatories, as to the contents of
the box of Luigi Dama in the Safe Deposit Company of Bos-
ton in 1887. Benjamin Randall says that he "knew exactly,"
because everything that was put into the box was put in in
his presence by Dama, and Dama never went to the safe de-
posit vaults except in Randall 's presence ; Dama came to Bos-
ton in 1885 and returned to California in the fall of that year,
came back to Boston in 1887 and returned west in the sum-
mer of 1887; the contents of the safe deposit box in 1887,
depones Benjamin Randall, were $5,000 in government bonds,
four of $1,000 each and two of five hundred dollars ($500)
each, two bonds of the Burlington and Missouri Railroad, one
N. O. Jackson and Great Northern R. R. bond; two articles
of jewelry which Dama had obtained permission to keep from
his wife's sisters, the gift to his deceased wife by her former
husband, a ring and a bracelet with portrait of her first hus-
band, Mr. Haynie; a locket of Mr. Dama's, and some diamond
studs, and some other articles of jewelry ; these were the prin-
cipal part of what was contained in the safe deposit; there
were not nine bonds of $1,000 each and two of $500 each;
there were four $1,000 each and two $500 each ; but on May
1, 1885, there were nine government bonds of $1,000 each
and two of $500 each ; Dama was not the owner of those
bonds in 1887, there were not then nine $1,000 bonds, he was
the owner of four; in 1885, 1884, and 1883, he was the owner
of the nine; on May 18, 1885, Benjamin Randall with Mr.
Dama, at his direction and in his presence, sold five of those
bonds to the Maverick National Bank, together with six of the
New Orleans, Jackson, and Great Northern Railroad bonds,
each of ;i thousand dollars denomination, for which they re-
ceived $12,600, to which Randall depones that he added per-
sonally aboul $900, making $13,500 received for those; Ran-
dall received Eor thai a check number 7^:{7, signed by J.
Work, cashier, payable to Luigi Dama, which Dama indorsed
to Joseph Worcester and Randall inclosed it in a letter and
.stni it by registered Letter to Worcester; $990, was the
Estate of Dama. 123
amount of cash Randall gave; in 18S5, Randall testifies, that
Dama was possessed of seven N. 0., Jackson and Great
Northern R. R. bonds, of $1,000 value each ; also of nine govern-
ment bonds of $1,000 each and two of $500 each in addition
to the Burlington and Missouri.
Now, if Randall be right, and he certainly is precise and
positive, Dama retained six United States bonds in 1885, hav-
ing sold five of $1,000 each to' the bank, leaving four of $1,000
each, two of $500 each, equal to six bonds, and these were in
the safe deposit box in 1887.
It is difficult to square this testimony so as to make out
Luigi Dama the owner of eleven bonds, or $11,000 in bonds,
on November 1, 1885, or on May 8, 1887.
It is certain that Dama possessed on the 18th of May, 1885,
thirteen United States bonds aggregating in par value
$11,000, which on that day he sold across the counter to the
Maverick National Bank of Boston for $12,395.62, aggregate
market value.
This evidence comes straight from the books of the bank.
The bank officers say they gave a check numbered 7237 for
$13,500 in payment; but it does not appear from their testi-
mony how the difference between $12,395.62, and the amount
of the check was made up. This difference would be $1,-
104.38.
Benjamin Randall testifies that on that day he sold in the
presence and by direction of Dama five United States bonds
of the par value of $1,000 each, $5,000, and six R. R. bonds
of $1,000 each, $6,000 ; for which they received $12,600, and
that he, Randall, made up the difference, represented by the
check numbered 7237 of $13,500, which was transmitted to
San Francisco to Rev. Joseph "Worcester and the proceeds
invested in the Jackson street property.
The books of the bank show that the R. R. bonds were sold
by Dama on May 29, 1885, and that on the same day he
bought from the same $6,000 in United States bonds in seven
pieces, five of $1,000 each and two of $500 each.
These R. R. bonds are those that Benjamin Randall testi-
fies were sold on May 18, 1885. Randall knew "exactly
everything that was put into the box because it was done in
his presence by Dama, who never went to the safe deposit
124 Coffey's Peobate Decisions, Vol. 5.
vaults except in his presence." Dama left Boston for Califor-
nia in the fall of 1885. The "Altered Will" and the "Long
Memorandum" are dated at San Francisco, November 1,
1885, after his return from Boston. At that date, accord-
ing to the depositions of the bank officers, he had disposed
of all of the government bonds which he owned on May 1,
1885.
According to Randall, who knew everything "exactly,"
Dama had at that date four $1,000 bonds and two $500 bonds
of the original acquisition still in the safe deposit box. Ac-
cording to the books of the bank he did not sell the R. R.
bonds until May 29, 1885, which Benjamin Randall states
were sold on May 18, 1885. According to the books of the
bank Dama bought $6,000 in U. S. bonds on May 29, 1885,
in seven pieces, five of $1,000 and two of $500 each, of which
transaction Benjamin Randall appears to have known noth-
ing, nor of the subsequent sale back to the bank on June 10,
1887, of one $1,000 bond.
It is clear that on November 1, 18S5, and on May 1, 1887,
Dama did not own either $11,000 in par value of govern-
ment bonds nor eleven bonds, nine of $1,000 each and two
of $500 each ; but he did own at those dates seven govern-
ment bonds, five of $1,000 each and two of $500 each. It is
plain that, as between the entries on the bank books and the
testimony of Benjamin Randall, we must accept the evidence
of the former and conclude that Randall errs in recollection
as to the transaction of May 18, 1885.
At the date of making the alleged Will, May 8, 1887, he
held only the bonds purchased on May 29, 1885, described
in the depositions of the National Bank officers, one of which
bonds for $1,000 he subsequently, on June 10, 1887, sold
back to the bank, leaving at his death in the safe deposit
box six bonds, four of $1,000 and two of $500 each, all
1 I'm -.111 by him on May 29, 1885; he had none of those ac-
i|iiii d in 1882, all of which he sold in 1SS5.
It docs iml appear clearly that he ever owned precisely
eleven bonds; of the first lot there were thirteen in number,
$11,000 in par v;dii"; and yet Randall says that Dama owned
in 1885, 1 i, and L883, eleven bonds, just a.s they are de-
Estate of Dama. 125
scribed in the "Altered Will" and "Long Memorandum" of
November 1, 1885, and the alleged Will of May 8, 1&87.
Whatever may be the effect upon the general result, the
fact would seem to be at variance with the statement in the
disputed documents, that at their respective dates there were
in the safe deposit at Boston eleven government bonds, nine
of $1,000 each and two of $500 each. Dama had some bonds,
but not the amount described in the disputed documents. It
was not entirely a "vain bequest," but it was a singular
misdescription of what he had, as well as an omission to note
the railroad bonds that were remaining in the box.
Dama's R. R. Land Transactions.
Turning now to the provision in clause Sixthly of the
alleged Will, in which the testator undertakes to dispose of
the railroad land: "Four deeds of land bought from R. R.
Co. of one hundred and sixty acre's each paid one-fifth by
myself Luigi Dama." It appears by the evidence of Jerome
Madden, land agent of the Southern Pacific Railroad Co.,
that on February 5, 1885, Dama purchased 640 acres; Feb-
ruary 24, 1885, 80 acres in Fresno; he paid twenty per cent
(one-fifth) of the purchase price; Madden had only two
transactions with him as indicated in the books but never
came into personal contact with him ; Dama paid the last
interest, according to the books produced by Land Agent
Madden, on February 11, 1886. (See judge's manuscript
notes of testimony, pages 49, 50.)
William T. Cummins testifies that he had three unfinished
contracts for railroad lands with Dama for 680 acres when
Dama died. (See judge's manuscript notes of testimony,
page 73.) Upon the cross-examination of this witness he
testified that shortly after Columbus Waterhouse was on the
stand in this case in the fore part of December, 1890, wit-
ness called upon him at his office and told him that he would
like to get all the light he could on the subject and called
upon him for that purpose. Cummins told him that his
brother Adley, then recently deceased, had said that French
and Burtis having got hold of the papers Smith was afraid
they might get hold of some other paper, and for that rea-
son employed French from such fear; he did not recollect
126 Coffey's Probate Decisions, Vol. 5.
that he said that the testimony of Waterhouse made such an
impression upon him that he believed now that the Will was
a forgery, nor that he said to Waterhouse at that time in
December, 1890, that if that Will was a forgery they had
murdered his deceased friend, but he may have said it, and
he does say it now (February 19, 1891). Witness Wm. T.
Cummins admitted having stated in his own house that the
fact that four deeds of land which Dama did not own were
included in the Will was sufficient evidence to his mind that
it was a forgery, but he made this remark because of the
persecution to which he had been subjected for years in his
own household, to secure relief from domestic dissension.
It appears that Dama had sold and assigned the original 640
acres early in 1885.
Wm. T. Cummins testified that Professor Dama did not
know anything about the lands for which he had contracts;
Dama depended entirely on Cummins. This would appear
to be the fact from the contracts themselves and the copies
of correspondence furnished by Cummins and in evidence
and on file herein. The friendship of Cummins was clearly
coincident with forty per cent of the profits on the land
transactions into which he let his deceased friend Dama ; and
in this respect the contracts filed herein speak for themselves.
Dama was dabbling in land speculation for years through
Cummins, entirely dependent on the latter, it would appear,
and if he did not possess the exact number of acres indi-
cated in the Will at the time of its date he had at least that
amount.
These points just adverted to as among the internal evi-
dences of the character of the alleged Will are conceived by
contestant's counsel to be the projecting and positive points.
the natural projections that stand out as monumental mani-
festations of malefaction in the manufacture of this probated
paper, and these points, coming from the testimony furnished
by the proponent and respondent, are so convincing that the
contestant's counsel think that upon them they might rest
secure of success in this contest. But important as these
points may be in the cogent contention of counsel for con-
Estate of Dama. 127
testant, it is possible to explain them if otherwise they be
riot found inconsistent with any theory contrary to that ad-
vanced by the counsel, who contend that what they call these
"extraordinary provisions" were a mistake upon the part of
the alleged forger, who erred in thinking that Dama owned
the bonds and the four quarter sections of railroad land
which he had long before sold and conveyed by deeds of
conveyance ; counsel claims that this is one of the most damn-
ing provisions of this disputed document — enough of itself
to condemn it (see judge's manuscript notes, page 257) —
but this censure is too strong, unless other circumstances con-
spire to justify it.
The Rationale of the Bequest to Mrs. Smith.
It is claimed by contestant's counsel that the clause in the
Will giving all of his property to Mrs. Sara Barker Smith
"for the purpose of further study and development of her
vocal organs and cultivation of her voice" is so absurd in
its nature as to be itself enough to condemn that instrument ;
the preposterous idea of expending the assets of the estate
in the vain pursuit of a voice at her age was held up to ridi-
cule by counsel, who asserted that no one can read that
clause without coming to one of two conclusions — either that
Dama was an idiot or that he was the quintessence of ab-
surdity.
I have undertaken to present a view of Dama as described by
Dorn, and it may be well here at the expense of some repeti-
tion, and in connection with the censorious comment of counsel
for contestant upon the whimsical character of this clause
of the alleged Will, to take another observation of the dece-
dent, as he appeared to the witness Worcester and to some of
the counsel in this case.
Counsel for respondent insist that it is not for them to
account for the peculiar provisions or the eccentric conduct
of the decedent in making this Will, for the contestant's
counsel themselves say that Dama was an odd and eccentric
man, and it is neither possible nor necessary for respondent
128 Coffey's Probate Decisions, Vol. 5.
to account for this manifestation of his eccentricity. Dama
began his experience with Wills with a bitter and painful dis-
appointment in failing to secure the probate of his wife's Will
through a trivial technicality in the omission of a date; this
made him, in the language of D. S. Dorn, "a kind of a crank
on the subject of Wills," and he had reason to feel embittered
toward the Randalls for their taking advantage of this technical
omission and disregarding the desire so solemnly expressed
by his wife that the property derived by her from him should
return to him. Dama evidently felt very keenly this treat-
ment, and so frequently expressed himself (see letter of Co-
lumbus Waterhouse to Dama, Respondent's Exhibit No. 32,
dated San Francisco, June 17, 1885, to Luigi Dama, East Bos-
ton, Massachusetts), and at that time his feelings toward the
respondent may be judged from the letter to her dated Chi-
cago, May 14, 1885. This does not accord with Mr. Dorn's
statement that after Dama's return from the east he felt
kindlier toward the Randalls. Respondent claims that it is
shown here by the evidence that Dama's feelings toward the
Randalls were still unchanged after his return from the east,
and this inference of error on Dorn's part is borne out by
the testimony of Reverend Joseph Worcester, a gentleman
whose character for veracity cannot be questioned. Mr. Wor-
cester says that when Mr. Dorn spoke to him about a Will
he inferred it was one that must have been executed about
two years prior — that is, in 1885. Mr. Worcester is a Swed-
en! orgian minister, a resident of San Francisco for upward
of twenty years; he knew Luigi Dama for about fifteen years;
he purchased the Jackson street property for him in 1885,
at the time Dama was in the east. Dama made repeated
trips to the east; the bonds he had in Boston he disposed
of to pay for that property, and he sent to Mr. Worcester
tin' full purchase price. $14,500, the proceeds of the sale of
the bonds. Mr. Worcester describes Dama as a careful and
particular man, a close man to the world, but. liberal where
he took ;i fancy. Mr. Worcester learned of Dama's death
the day he died, aboul noon, Friday, January 20, 1888, from
Ali.ss Belle Earris, who told him in the professor's house,
where Mr. Worcester hud gone to see him when Dama was
Estate of Dama. 129
sick, and he was there on such a visit when he was told of
the professor's death. Mr. Worcester was told by D. S.
Dorn that he was an executor in a Will that Dorn had drawn
for Dama. Mr. Worcester went to lawyer French's office
on Saturday, January 21, 1888, between 3 and 4 o'clock in
the afternoon ; previous to that hour Mr. Worcester went to
the professor's house as a friend to see about his burial.
When he went to Mr. French's office there was nobody there
that he knew. He was told that Mr. French would be in
later; he went out and after a while returned and found
there Mr. French and Mr. Burtis. When Worcester went
in French was engaged talking with some one and he mo-
tioned to Worcester to go into the inner office and he did
so and found there Burtis. Worcester told French that he
was informed that he (Worcester) had been named executor
in a Will of Dama's that might be his last one. French
then told Worcester that he had been out to the city hall
and had had a special administrator appointed and that
Burtis was the person so appointed. It was then suggested
that they go to the safe deposit, where there might be found
a Will, and the three proceeded to that place. The letters
of special administration were presented, and they were con-
ducted to Dama's box. Mr. Worcester could not recollect
who applied the key to the box, whether it was Mr. Burtis
or the man in charge. The papers were withdrawn from the
box and taken to the light where they could be examined;
this was on Saturday, January 21, 1888. The papers were
taken out and opened. Mr. Worcester went there as a named
executor in one or more previous Wills. He had never seen
any previous Wills, not even a memorandum. His relations
with Professor Dama were both social and intimate; their
acquaintance came about through Mr. Worcester's previous
and long acquaintance with Mrs. Wealthy B. J. Dama. He
had known her and her family in the east, where she was a
member of his congregation in the ' ' Church of the New Jeru-
salem," and she was also a member in San Francisco. Mr.
Worcester had seen Mr. Dama write frequently, but was not
a close observer, he might identify it, but not with certainty
sufficient to satisfy his own mind if there were no doubt
thrown upon it. When the paper was taken from the safe
Prob. Dec, Vol. V — 9
130 Coffey's Probate Decisions, Vol. 5.
deposit box, the "Short Memorandum" (Respondent's Ex-
hibit No. 1). Mr. Worcester accepted it as Dama's handwrit-
ing. The question arose at once as to who was Mrs. Smith.
Mr. Worcester remarked that he did not know her, Burtis
expressed ignorance of her identity, and French also. Noth-
ing more was done or said then ; the papers were done up
and put back. He was not sure about the "Short Memo-
randum"; he had no recollection, and he could not identify
R spondent's Exhibits No. 9, Deed of C. E. Royce to Dama,
No. 11. Deed of Solomon Sweet. Xo. 12, Abstract of Title,
Xo. 55, Agreement of Sale Phelps Real Estate; there were
papers similar in appearance, but a thicker bundle. Mr.
Worcester was at the s^fe deposit with French and Burtis
but once, and that on the occasion specified. Mr. Worcester's
impression was that they examined the papers by daylight ;
it may have been by gaslight. It was about 5 o'clock of a
Saturday afternoon, on the 21st of January, 1888. Mr. Wor-
cester was with Professor Dama when he rented the box at
the safe deposit; he introduced Dama there. Worcester did
not know until lately that Dama had a substitute who could
go to the box. He supposed that Columbus Waterhouse was
the substitute, but recently, since this trial began, Mr. Wor-
cester had been told that he himself was the substitute, but
he never had a key to the box. (Judge's manuscript notes
of testimony, pages 47. 48, 86, 89.)
Witness Worcester wrote to Benjamin Randall a letter
on the 23d of January, 1888 (Contestant's Exhibit G-33).
He had a conversation with French after receipt of telegram
from Randall on that day. He ask* d him who the executor
was and French declined to inform him. When he went to
French's office Worcester stated to him that he had been
informed by Mr. Dorn that he (Worcester) was in one or
re of the Wills made by Dama coexecutor with Columbus
Waterhouse, and that as Waterhouse was absent from the
city he must act. French said that he had obtained from
the court the appointment of a special administrator and
that presently they were going, he and Air. Burtis. to the
deposil to examine the papers. The three went there.
Mr. \Y r saw no one break the seal, he saw the papers
withdrawn, but recalled only one, the "Short Memorandum,"
Estate of Dama. 131
or Kespondent's Exhibit No. 1. After the reading of that
paper Mr. Worcester felt himself discharged. The first time
Mr. Worcester learned that Burtis was appointed special ad-
ministrator was when he went to Mr. French's office; Mr.
Worcester had a conversation with Mr. French at Halsted's
undertaking establishment on Sunday, January 22, 1888-
French told him he had seen the Will, but Worcester could
not recall what he said upon that occasion. Worcester re-
ceived a letter from French notifying him of the time of the
funeral. He was not requested to officiate at Mr. Dama's
funeral. Mr. Worcester could not recall who made the sug-
gestion that he should officiate at the funeral. There were
present Mr. French, Mr. Burtis, Dr. Brigham, the under-
taker or his assistant, and the two ladies, Miss Harris and
Mrs. Waterhouse. The suggestion may have proceeded from
the latter or either of them. Worcester did not directly de-
cline, but simply turned the suggestion aside. (See pages 89.
90, 91, judge's MS. notes.) There was a general conversa-
tion at the professor's house on the Friday evening in which
Mr. French and Mr. Worcester took part, also Mr. Burtis,
Dr. Brigham, Miss Harris, Mrs. Johnson, the undertaker,
and perhaps others. Dr. Brigham said that if the body
was to be embalmed, the sooner the better. Mrs. Columbus
Waterhouse may have spoken of the embalming, she was
present. All of his pupils and friends knew of the pro-
fessor's wishes in that regard. When Mr. Dorn spoke to
him about a Will, Mr. Worcester inferred that it was one
that must have been executed about two years prior. (See
page 48, judge's manuscript notes testimony.) When Mr.
Worcester went with professor Dama to the safe deposit
it was several years ago, after the death of Mrs. Dama in
1883. Mr. Worcester thinks he may have been a little pre-
cipitate in assuming at the time he was with French and
Burtis at the safe deposit that he was not executor, but when
no Will was found and the memorandum referring to papers
in hands of a person whom he did not know, he felt that
he was discharged of any duty and that he had no further
business there. (See page 91, judge's manuscript notes tes-
timony.) Mr. Worcester had no recollection of visiting the
safe deposit vaults as testified to by Mr. Curtis, superintend-
132 Coffey's Probate Decisions, Vol. 5.
ent of the safe deposit (who said that Mr. Worcester called
the next morning after Dama died between half-past 8 and
9 o'clock, just as Curtis was going off watch, Worcester called
for a special purpose according to the information received
by Curtis. See page 102, judge's MS. notes testimony).
Mr. Worcester says that it is entirely unlikely that he made
this visit, for his habit was to remain at home until 10 o'clock
in the morning, unless soma especial reason exist for going
out before that hour; but this habit was not invariable and
it is possible for him to have gone out on some occasion
and then forgotten it. (Judge's manuscript notes testimony,
page 164.)
Dama's Character and Environment.
That Luigi Dama was a quaint exotic there can be no doubt.
In the language of Counsel Russell J. Wilson, Dama was an
eccentric old Italian music master, with a vein of cynicism, yet
not altogether out of touch with nature, surrounded by self-
seekers and self-servers expectant to be made the beneficiaries
of his bounty, while he himself was always looking for a friend
and ever mourning his deceased wife, for whom he entertained
an extraordinary affection and whose nature and character he
portrayed in striking contrast to that of her relatives, the Ran-
dalls. He had no one to open his heart to; he never wrote
to any of the family to let them know, because their nature
was so different from his wife (see letter to Mrs. Gibbons.
March 7, 1884, Respondent's Exhibit 34). Two years after
this letter he wrote to Jennie Forbes (March 28, 1886, Con-
tant's Exhibit C — 3), that the reason he did not write
often was that he lived in a state which nobody could realize;
he bad no pleasure to live, no amusement, no friends who
could relieve his sorrow — a state of mind which he could not
tell. Sometimes be was in the mood to take his own life
and go to join his dear beloved one. the only one which he
fell the pure divine love in this world. She was everything
in this world for everybody, and the angel, and consolation.
and mud.- of all. His feelings did change toward Columbus
terhou ra from bis letter to Benjamin Randall,
December 25, L886 (Contestant's Exbil.it 1—9), in which he
Estate of Dama. 133
spoke of having stopped altogether calling at his house, giv-
ing the reason therefor.
Inception of Dama's Attachment for Mrs. Smith.
Now, it is said that at about the time that Dama under-
went a change of feelings toward his deceased wife's rela-
tives, the Randalls, he became more friendly toward Mrs.
Sara Barker Smith, the respondent herein. He became at-
tached to her and warmly interested in her welfare, and felt
proper resentment toward the Randalls for having through
technicality taken from him what his wife's Will devised,
and there is no doubt that he suffered a change of heart
toward Columbus Waterhouse, although he may have dis-
sembled in his presence. There is ample evidence in the
record that Dama was a dissimulator, and he practiced
upon Columbus Waterhouse as he did upon other pupils,
"most of whom were there for their health." according
to the evidence of Mr. Waterhouse. What were his feel-
ings towards Mrs. Smith at that time? The letter from
Chicago, May 14, 1885, shows appreciation of her kind-
ness toward him, and is a gauge of friendly feeling (Re-
spondent's Exhibit No. 97) ; his feelings were then and re-
mained friendly toward Mrs. Smith. In that letter he ex-
pressed a hope that she would remember to not sing at all
and enjoy the summer vacation, and let the voice rest and
let nature act and gain more power, so that on his return
there would be no trouble at all and they would begin to
work in the art of the use of the voice.
Was Dama Sincere in Regard to Respondent?
If he was sincere in this expression it cannot be said, as
counsel for contestant contend, that the purpose of the be-
quest was a burlesque on common sense, or that there was
no basis for such a legacy, nor that this bequest alone, be-
cause of its absurdity, establishes the proposition that the
alleged Will is false and fraudulent in its conception and
concoction. This letter showing faith in her vocal capacity
was dated May 14, 1885, and the "Altered Will" was dated
November 1, 1885, so that, assuming the authenticity of the
. 134 Coffey's Probate Decisions, Vol. 5.
latter, there was some reason for the bequest at that date.
Counsel for the contestant deride the object of this bequest
and say, with some show of sarcasm, that if we listen to the
witness, Mrs. Helen Cushman, it was the great object of
Professor Dama's ambition to make of Mrs. Smith the great
exponent of his theory of voice culture.
What was Dama's Theory of Voice Culture?
He was alone in his views; he had studied medicine and
surgery in order to ascertain accurately the anatomy of the
throat, to more thoroughly treat his pupils and enlarge their
vocal power; he believed in no other system; he taught that
all other teachers were impostors, and that the money they
exacted for teaching was extortion ; that they were not versed
in the true science and art of vocal development, and that
he alone knew it all. It is not reasonable to believe, urge
counsel for contestant, that such a man, with so strong and
invincible a prejudice against other teachers, would bestow
his fortune upon a woman with a voice of so light a volume
and limited a compass for the purpose of enriching those
whom he considered incapable of imparting instruction ac-
cording to the only true method, his own unique system.
Mrs. Sara Barker Smith did not have the natural conditions
to make a singer, nor did Professor Dama believe that she could
ever make a singer, because she had natural inherent defects,
as he said to Dorn and others, and so we have it, quoth counsel
for contestant, that the more Ave study Clause Sixthly of the
alleged "Will, the more we view it from every side, the more
absurd does it appear; it turns the whole case to ridicule,
and it is too great a tax upon credulity to believe that a court
accustomed to consider and construe questions of this grave
character will accept seriously this absurd clause as an au-
thentic creation. It never emanated from the hand or brain
<>f Lflligi Dama; but, say the counsel for respondent, the pur-
pose of his bequesl to Mrs. Smith was reasonable in itself and
characteristic of tin- testator, who was inclined to give a rea-
. no matter how whimsical; but this was not whimsical —
it was according to his theory of voice culture and progres-
Estate of Dama. 135
sive development; and this sharp attrition of argument of
opposing counsel brings us to the consideration of the testi-
mony of Mrs. Helen M. Cushman, a witness for the proponent
and respondent, who was also a witness on the original pro-
bate, March 27, 1888.
Mrs. Helen Cushman.
Mrs. Cushman is a resident of Alameda, who confesses to
half a century of life. She came to California in 1871, the
year of the Chicago fire. She lived at one time for four
years teaching in Janesville, Wisconsin, at Miss Scribner's
Young Ladies Seminary, where Mrs. Sara Barker Smith,
then Miss Sara Barker, was a pupil. She knew Julius P.
Smith, who is now Sara's husband. She taught Sara piano
and vocal culture. In this state Mrs. Cushman has been
employed as piano and organ teacher; taught at Benicia
Seminary, and also at Mills Seminary, and has been playing
the organ in different churches and is now engaged in the
town of Alameda. Her first husband's name was C. C. Cush-
man (he is now dead), and her second was J. W. Yarndley,
from whom she was divorced. • Mrs. Cushman knew Profes-
sor Luigi Dama quite well; made his acquaintance in 1877
and formed the acquaintance of his wife at the same time.
She had heard of him as a successful treater of clergyman's
sore throat and called upon him to learn of his system, as
she had a chronic sore throat trouble herself and was always
ambitious to learn something more of voice culture. She
took lessons of Dama for four years ; her husband (Mr.
Yarndley) also took lessons. Mrs. Cushman introduced Mrs.
Sara Barker Smith to Professor Dama. One day Mrs. Smith
said to Mrs. Cushman that she wished she knew a good
teacher of vocal culture and Mrs. Cushman said that she
knew just the man, and she took Mrs. Smith to the profes-
sor's house and he tried the voice of Mrs. Smith; it was a
mezzo or a medium voice. He said there were great pos-
sibilities in it. more than Mrs. Cushman understood. Dama
said that Mrs. Smith might become a great artist, she had a
very sweet voice. Mrs. Cushman took lessons, three or four
a week about that time. Mrs. Smith was also then taking
lessons at a different hour. The professor and Mrs. Cush-
136 Coffey's Probate Decisions, Vol. 5.
man had many conversations about the character and quality
of Mrs. Smith's voice and the prospects of her making a
singer. This was in 1884. Dama told Mrs. Cushman of
Mrs. Smith's ability to become a dramatic artist and a great
singer. In one conversation particularly, in which Mrs.
Cushman criticised Mrs. Smith's rendering of a song, the
professor said that the critic knew very little about it, that
Mrs. Smith had the making of a great artist, and that if
his life were prolonged they should see what he could do for
her. After Mrs. Smith took lessons for a while Mrs. Cush-
man noticed great improvement in her voice. The professor
always treated Mrs. Smith with great respect and courtesy,
and in the time of flowers he always had for her a little
bouquet, but not any for Mrs. Cushman. The professor
sometimes dined with the Smiths; Mrs. Cushman was there
often. Dama came early and they always had "a little sing"
before dinner. Mrs. Cushman knew Dr. Tisdale for four
years and was very well acquainted with him and his family.
She recommended him to Professor Dama, because she had
confidence in him as a reputable physician. Mrs. Cushman
also recommended Mrs. Fannie Johnson as a nurse, because
she thought her to be just the person for the purpose; she
felt interested in Mrs. Johnson because she seemed to be
superior to her station, and she felt sorry for her and sent
her with a letter to Professor Dama and stated the amount
of pay — twenty dollars per month and board for herself and
little girl — and Mrs. Johnson went over to San Francisco
from Alameda and was engaged by him. Mrs. Cushman at-
tended the funeral of Professor Dama. Her first notification
of his death was by a letter from Miss Harris; she had no
other notice from anyone else. She was one of Professor
Dama's warm friends; she was also a very dear friend of Mrs.
Smith, who first told her that she was the custodian of the
Will two days after it was opened. Mrs. Smith told her that
she v>;:.s greatly surprised by the contents of the Will, hut
Mrs. Cushman was not surprised, because Professor Dama
was so eccentric in his ways and methods of life. Mrs. Cush-
man could n 4 remember how often the professor presented
Mrs. Smith with flowers, but he never gave any to Mrs. Cush-
man, although she was such a "warm friend," but she did
Estate of Dama. 137
not feel aggrieved at this slight ; she did not think anything
about it. Thej 7 were very inferior roses that grew in his
garden. Mrs. Smith sometimes took them home, sometimes
gave them away, or threw them away. The professor would
say, "I present you a few flowers"; Mrs. Smith would say,
"Thank you." Mrs. Cushman knew of no reason why the
professor was more demonstrative to Mrs. Smith than to her,
except that Mrs. Cushman was older and she did not look for
any gallantries. Professor Dama had great hopes of Mrs.
Smith that she would extend his theory, which he could not
have had in Mrs. Cushman 's case. "When Mrs. Smith threw
the roses away she said that she did not know what to do with
them as they were troublesome when they were shopping.
The Flower Bouquet Incident.
This incident counsel for contestants considers of inferential
importance, and says that if Mrs. Smith should prevail in
this court upon this false paper we shall see many documents
of this description propounded for probate, for there are
many other Mrs. Smiths in this world, millions of such
women, hypocrites and traitresses, false to the memory of
their friends, betrayers of benefactors, and hollow in their
hearts, as she proved herself when she took his little gift of
flowers plucked from his uncultivated house garden, given to
her with such grace and feeling, and threw that graceful
tribute on the pavement to be trampled upon by street-
walkers, and footpads — trivial as this incident was, it be-
tokened her false and hypocritical character; but it is attach-
ing too much importance to this act to hinge upon it the issue
of so grave a controversy. It illustrates the kindness and
courtesy and preference of Dama when he bestowed a little
faded flower, "a very inferior rose," according to Mrs. Cush-
man, who was not so favored, upon a lady pupil, who did not
care to pack it in public, but it does not prove nor tend to
prove her a felon.
The Respondent, Sara Barker Smith.
We come, now, to the consideration of the testimony of the
respondent. Mrs. Sara Barker Smith has resided in Cali-
138 Coffey's Probate Decisions, Vol. 5.
fornia since 1874; was married in Edinboro', Erie county,
Pennsylvania; born in Lewis county, New York; wife of
Julius P. Smith ; thirty-nine years old ; studied music first
in Janesville, Wisconsin, at Miss Scribner's Academy for
young ladies; first lived in California at the Grand Central
Hotel in Oakland, afterward at the Palace Hotel in San
Francisco, then took house on Clay street; in 1881 she and
her husband took a European trip, returned in 1883, visited
England, Belgium, Spain, Italy, Morocco, Algiers, went over
the entire country of Italy and Austria ; did not study music
while there ; visited Scotland and Ireland, but did not kiss
the Blarney Stone, although they saw it ; it was her intention
to take lessons in music in Paris from Madame Marchesi, but
concluded that upon their return the same object could be
accomplished by securing the best vocal foreign instructors
resident in San Francisco; upon returning here, through her
old and warm friend, Mrs. Cushman, who had been her vocal
teacher in Janesville, at Miss Scribner's school, made the
acquaintance of Professor Dama, of whom she spoke in the
most enthusiastic terms; visited him together with Mrs. Cush-
man, he tested her voice, and said she had an exceptional
voice; at that time Mrs. Smith's voice was a light soprano,
an octave and a half; she probably sang not higher than A
and in F, probably to C, but she had no chest tones at that
time ; in his method of teaching he claimed that everyone had
an impediment; Mrs. Smith's he claimed to be in the musical
or vocal cords and the cricoid cartilage ; she took three or
loin- lessons a week until he told her to take six until his
death, with the exception of the summer months which the
Smiths spent at their country home; Mrs. Smith's progress
was very rapid; the lesson consisted mostly only of tones;
Dama played accompaniment; her voice was high soprano;
he praised t lie quality and compass of her voice; Dama went
I on 1 he 7th of May, 1885; Mrs. Smith made provision for
his comfort while on the way, put up lunch for him in basket
< e letter of Dama from Chicago, May 14, 1885) ; Mrs. Smith
and the professor talked of Italy and of the places she had
visited, and of his native place in Naples; Mr. Smith was
eager to hear her sing and they invited Professor Dama to
the house, 212U Jackson street, and Dama frequently dined
Estate of Dama. 139
with them ; he usually came an hour or an hour and a half
before dinner; he played accompaniment and Mrs. Smith sang
until dinner; Dama sometimes gave Mr. Smith and herself a
lesson in Italian ; Mrs. Cushman was almost always present ;
Dama frequently in the spring-time, in his own house when
she would go to take lessons, would place a little bouquet of
flowers on the table in front of his piano upon a square piece
of paper so that the ends might be inclosed to prevent soiling
of her gloves; the lessons were three dollars each, an hour;
frequently her lessons extended over an hour, but the pro-
fessor made no extra charge ; she had some pictures taken and
the professor saw one and she gave him one (Responient's
Exhibit 95 is the one she gave him, Cabinet Photograph) ;
this photograph was found among his effects, after his de-
cease, and Mr. French, the attorney, gave it to her; the pro-
fessor had three other pictures of Mrs. Smith, a tintype and
two photographs. After Professor Dama returned in 1885
she resumed lessons with him ; on Christmas. 1884, she made
a present to him, a solid silver-handled umbrella; on Christ-
mas, 1885, she gave him a gold-headed cane ; on Christmas,
1886, a satin laundry list and handsome bouquet of flowers ;
on Christmas, 1887, a dressing gown, a double gown, long
quilted gown; she had a great deal of trouble in fitting him
as he was very large then on account of dropsy ; she put some
gores in and altered it to suit him ; he presented her an ivory
boat, a model in ivory, which she took home, a maid was sent
for it, and put it in a box; Mrs. Smith has never looked at it
since; he did not make her any present until the day he was
operated on, when he said he was going to make his "toilet
for death, ' ' he did not expect to live ; he said if the operation
proved unsuccessful in two days he would be dead — at all
events he said it was only a question of a short time when he
would die ; he brought out a gold watch and wished her to
accept it, and also a diamond pin; he said he wished her to
have them as souvenirs of him, that the pin was made of a
diamond ring he used to wear; he gave her three diamond
studs, three pearl studs, and a cluster of diamonds, and she
accepted them. A short time before the professor went east
in 1887 one morning before her lesson he brought her an
envelope and wished her to take charge of it; it was marked
140 Coffey's Probate Decisions, Vol. 5.
"Will and Testament"; she said that as he had a box in the
safe deposit it would be better for him to keep his Will there,
but he said that he had reasons of his own for not keeping
his Will there; he, told her that Mr. Columbus Waterhouse
had the key to his box and that was the reason he did not
wish to put his Will in the safe deposit; he said that in 1885
he left the key of his safe deposit box with other papers in
Mr. Waterhouse 's safe, and Mrs. Smith immediately proposed
his calling for the key, and the professor said that he did
not wish to do so, and that he preferred her to take charge
of it, and she assented to this proposition; the first thing was
to put it in an envelope and mark it "Private Paper," in-
stead of "Will"; it was already marked "Will," but she re-
quested him to put it in another paper and mark it "Private
Paper," and she then requested him to wrap it and tie it,
which he did; then she took charge of the Will. At that
time in front of the fireplace in the front room over the
cuspidor he held a paper, it looked to her to be a paper about
legal-cap size, about the size of the Will ; the professor took
a match, lighted this paper, and said that was good-by to the
Waterhouses or Waterhouse Will; she took the Will home and
placed it in her laces, in a large trunk, and locked it, for the
reason that she always carried the laces with her, and it im-
pressed her that it was the safest place to keep it; when lie
returned from the east in August, 1887, she carried the Will
back to him and asked him if he wanted to take it back ; the
professor said that he was not well, was feeling wretchedly,
and wanted her to retain charge of it; she took it back and
replaced it among the laces; on the morning that he was
operated upon, Wednesday, January 18, 1888, Mrs. Smith
asked him in case anything happened to him what she should
do with the Will; he said that whenever she opened it she
should see that there were three witnesses present; this con-
versation occurred on the morning of Wednesday, January
18, 1888; Mrs. Smith remembered that date because it was
the last day of lessons; when Mrs. Smith was taking lessons
of the professor after practicing until she was fatigued they
sometimes sal and chatted, and at other times they would
devote perhaps fifteen minutes to Italian lessons; the pro-
fessor usually spoke very kindly of his pupils and — she dis-
Estate op Dama. 141
liked to say it except in self-defense — he referred to Miss
Belle Harris as the one with a queer brain; it amused him
to hear her talk; he would frequently lean back in his chair
to listen to Miss Harris to see how long she would talk and
what she would say ; Mrs. Smith usually sat on a chair at the
end of the piano ; before Dama went east he was feeling very
poorly and when he came back it was very similar ; after his
return he did not improve, he gradually grew larger with
dropsy; the professor told Mrs. Smith that he studied medi-
cine in Italy prior to teaching so as to understand anatomy
of the throat so that he might teach comprehensively; Mrs.
Smith read several books on the voice and conversed with
him about their contents ; he thought that the work of Charles
Lunn of London was perfect in its method if the author
taught as he wrote; Mrs. Smith told the professor he was a
very ill man and ought not to go longer without attendance,
and finally at her instance, through Mrs. Cushman, Dr. Tis-
dale, Senior, called to see him; she called on the professor
the morning of the day he died, Friday, January 20, 1888;
he was in a very weak condition, in bed, reclining on pillows
in a semi-recumbent position; Mrs. Johnson, the nurse, ad-
mitted her ; as Mrs. Smith entered the hall she heard the pro-
fessor calling and she, not wishing to take command herself,
told Mrs. Johnson that he wanted her; Mrs. Smith went in
and found him in a very feeble condition, very weak; he
asked her how he looked; she answered "Very well," not
w r ishing to say, as was the fact, that he was looking very bad ;
he asked her to water some flowers for him ; she did so ; they
were in moss under his wife's picture; he said that Mrs.
Johnson did not know how to do it ; Mrs. Smith watered the
flowers and then returned to the room; she said to him
"talking tires you"; he assented by a nod; he settled back,
with a deep sigh, on his pillow, and Mrs. Smith asked him
if he wished her to go and he nodded and she left. Mrs.
Smith never saw him again alive ; she first heard of his death
from Miss Myers, a cousin of Miss Belle Harris ; she received
the announcement as she was about leaving her house, attired
for the street, preparatory for her usual morning visit to the
professor; her bell rang and Miss Myers appeared and made
the announcement. Miss Myers testifies that at the request
142 Coffey's Probate Decisions, Vol. 5.
of her cousin she went to Mrs. Smith's house the next morn-
ing after Professor Dama died to inform her of his death.
Mrs. Smith was about going out as Miss Myers entered the
house and informed her of the sad news. Mrs. Smith seemed
very much affected ; she asked who was the last person with
him and Miss Myers said "You were." Evidently that was
the first Mrs. Smith heard of the event. Mrs. Smith said when
the lessons were given to her by Professor Dama when he was
ill he sat by the fire and she sat on a stool near the piano ; he
directed her tones and she produced them. She suggested that
he ought to have nourishing food ; her maid prepared coffee
and she took it to him. Professor Dama claimed that a
woman sixty years of age might under his system obtain a
fresh, sweet voice, and once obtained it would remain through
life. After Miss Myers told Mrs. Smith of the professor's
death she went immediately to his house, 317 Mason street.
The door was opened by either Mrs. Johnson or Miss Belle
Harris, she was not sure which. After some conversation
between herself and Miss Harris, Mrs. Smith stated that she
had the Will and asked Miss Harris if Mr. Adley Cummins
was to be the attorney for the estate. Miss Harris said "no";
she also said that the professor had told her that his Will
was made and was in good hands. On Sunday, the 22d, Mr.
Burtis and Mr. French came to the house of Mrs. Smith and
spoke of having been at the safe deposit vaults, and learning
that she was in possession of the Will, and that Mr. Burtis
\v;is the special administrator; they had some general con-
versation about the Will, which was produced by her as she
had received it in the envelopes and opened and read by .Mr.
French, who was finally agreed upon to take charge of it and
act as attorney. The first time that Mrs. Smith saw Mr. Burtis
to know him was on this Sunday, January 22, 18S8, when he
came 1<> her house with Mr. French. This is the substance of
the statemenl of Mv>. Smith on direct examination, but coun-
sel for contestants Bays she appears very differently under
the camera of cross-examination. On the direct examination
it would appear thai she was born with a silver spoon in her
month, that her origin was of a superior sort and that she
Estate of Dama. 143
was not of such lowly birth as most others, but it turned
out on cross-examination, according to this counsel, that
her pretensions were spurious and her aristocratic assump-
tions simply and solely shoddy. Her early years were not
spent in such surroundings as she would have people be-
lieve, and her social aspirations and ambitions were founded
upon a false basis. Her armor of aristocracy was pierced,
and her claims to especial consideration and social caste have
been proved worthless by the crucial test of cross-examina-
tion. Mrs. Smith and Burtis would have the court believe
that they did not know each other originally ; that until after
Dama died they were not acquainted, but the evidence of Mr.
Dorn is that Mrs. Sara Barker Smith and Mr. R. W. Burtis
were acquainted with each other, and Mr. Dorn was not cross-
examined.
Life History of Sara Barker Smith.
Mr. Dorn testified that he knew that Mr. Burtis and Mrs.
Sara Barker Smith were acquainted with each other. The his-
tory of the respondent, as given in her cross-examination, is that
she was born August 11, 1851, in Collinsville, Lewis county.
New York, where her father, James Barker, was a merchant ;
her father went to Pike's Peak during the excitement before
the war ; he had failed in business prior to his departure ; after
he went away her mother procured a divorce from him and
married a Mr. Burnham, from whom she was divorced; he
brought suit, but she gave occasion for it by throwing some-
thing at him to give cause of action, so the respondent had
been informed by her brother ; Mr. Burnham was at one time
a grocer, afterward a lawyer ; he died a violent death — it was
not certain whether it was suicide or not; her mother is still
living ; her brother, George P. Barker, is now dead ; he died
in Canada ; he left Chicago because the north was distasteful
to his wife ; his wife was not of a pronounced Southern type,
a Creole ; she had blue eyes, hair almost black, or dark hair,
slender face, not round, rather sharp features ; her name was
Emma Hook; Mrs. Smith did not know that her brother left
Chicago because he was suspected of sympathizing with the
144 Coffey's Probate Decisions, Vol. 5.
Southerners; he settled in Canada during the war, and died
there; her father died in San Rafael; he came to California
for his health; it was in 1887 or 1S86 that he came here; it
was on the afternoon of January 22, 1888, that Mr. Burtis
and Mr. French came to her house ; her father and his wife
were in the house but not present at the interview ; her father
died October 11, 1888; on the occasion when Dama gave to
her his Will Mrs. Smith asked him to tie it with his peculiar
knot ; she had no particular reason for the remark exoept to
say something or show that she had no curiosity to look within
it ; it was, perhaps, an idle remark ; her idea about putting
it in a second envelope was that it would not be so easy to
open it, she had no other reason ; when the Will was put in
the second envelope it was then inclosed in some wrapping
paper; Professor Dama said that it was his Will, but he did
not tell her of the contents; there could be no mistake about
that ; Mrs. Smith knew Mrs. Anna Herbert Barker ; she never
stated to her and her own father — Mrs. Barker's husband —
on the 22d of January, 1888, that she had his Will all the time
without knowing what it was until the gentlemen called; she
never said to them, "Well, pa, I am the heir to all Pro-
fessor Dama's property; I have had his Will all the time
without knowing what it was until the gentlemen called and
read it"; she never made any such statement; there is not a
particle of truth in that; nor was she commended by her
father or her husband for keeping a secret so long, and they
did not say it was an unusual circumstance for a woman to
keep a secret; it is a fact that she did not tell her husband
"i- Mrs. Cushman; no hand ever touched that Will but her
own from the time Professor Dama gave it to her, nor did she
say a single word to a soul on that subject from the time he
gave it to her until the 22d of January, 1888, when it; was
ened and read; after the reading she told her father and
his wife of the contents of the Will, and that she was the
chief legatee, and also told of the present that the Profea
gave h<-r before his operation; when Mrs. Smith went to the
country she took some of the papers with her; the more val-
uable, deeds and the like, she kept in the Safe Deposit Com-
pany: Borne of his letters thai she thought of no particular
use were destroyed; Miss Harris' letters were all returned to
Estate of Dam a. 145
her. Mrs. Smith called upon the professor the morning of
his operation, and he told her he was going to make his toilet
for death and that he was going to send for a barber; she
asked him for a lock of his hair and he told her to take a
scissors, and she cut a lock of his hair and she still retains
it; Le said that even though he were tapped he would fill
up again and he would not live more than three days ; he
said he could already feel the water around his heart; he gave
her then the studs and diamonds and the gold watch to re-
tain as a souvenir; when he gave her the "Will she told him
that the proper place for his Will was in his safe deposit
box; she could not tell how she knew that he had a safe
deposit box but she did know it ; she could not recollect when
or whether he told her; she consented to take charge of the
"Will ; she told him if he really wished to have her take charge
of it she wished he would put it in another envelope and
mark it "Private Paper"; she did not remember where he
got that second envelope, the yellow one; the white envelope
was closed when she saw him put it in the yellow envelope ;
she did not remember whether he had any trouble in get-
ting it inside the second envelope ; the professor said when
he gave her the Will that he wished her to take charge of it
because Mr. Columbus "Waterhouse had the key of the safe
deposit box and he was east ; she placed the Will in her laces
in her trunk and kept it there; took it with her when she
went to "Olivina," the vineyards of the Smiths near Liver-
more ; she always carried her laces with her ; after the knot
was tied around the papers she proceeded with her lesson
and then went home ; she placed the paper within the folds
of her dress, which were pinned together, as her pocket was
not large enough for it; in the course of time the professor
asked her where she kept the Will ; she told him with her
laces ; she did not remember how often he asked her ; on the
18th of January, 1888, he told her if anything happened to
him to have three witnesses to whomever she handed it ; she
went direct to her house with the Will ; it was not raining;
she put it in her laces immediately on arriving at home,
placed it in the package of laces, then sewed the package up ;
she brought most of the laces from abroad in July, 1883, in
the "Alaska"; they were not noted at the custom-house in
Prob. Dec, Vol. V — 1C
146 Coffey's Probate Decisions, Vol. 5.
New York ; her husband had no box in the safe deposit ; he
had a safe in his office; Mrs. Smith kept the Will among
the laces because she thought it was safe there, that was the
reason that she did not put it in her husband's safe. Pro-
fessor Dama told her that Miss Belle Harris was nearing
a change of voice and that she would gain flesh and good
looks and that he was in hopes she would get a beau. Mrs.
Smith did not repeat this to Miss Lowrey and Mrs. Cummins
and Miss Harris, the ladies that were in the dining-room, be-
cause she thought it would be rude in her to say so. Pro-
fessor Dama did not say so to Miss Harris, but then, said
Mrs. Smith, "We do not always express our opinions of
others to their faces." Miss Harris had given Mrs. Smith
no occasion to love her, and Mrs. Smith had no particular
liking for Miss Harris, in fact she thought she disliked her.
AVhen Mrs. Smith had a conversation with Miss Harris up-
stairs in the bedroom of the professor's house after his death,
Mrs. Smith did express sorrow that she had not remained
longer on the morning of his death, and Miss Harris said
it was just as well that Mrs. Smith had not, because the
Knights Templar had asked many questions concerning the
professor's death ; the conversation was to that import or
purport ; Mrs. Smith had testified that she knew that Pro-
fessor Dama had trouble with Wills before, for he had told
her that his wife had made a Will in his favor and for lack
of a date it had been denied probate; the professor told her
of his trouble in probating that Will, that his wife's relatives
had prevented the Will from being admitted to probate and
had probated a former Will; he said that most of the prop-
erty — about half of it — was his, had been given by him to
her; he had given her the Boston property and the lots in
San Mateo county were his, and that when he was east they
did not j^ive him even a souvenir of hers; she kept from her
husband the fact that she had possessed the Will, because
sin- used her own judgment, which she had frequently found
by events to be better than that of her husband; she never
had experience of this kind before and hoped never to have
ii a<_ r ;iin: she had m >s1 certainly watched the progress of this
trial and was interested in the result; she had not caused
any articles to be published in the papers nor paid for the
Estate op Dama. 147
publication of any articles except indirectly, when Mrs. Ella
Sterling Cummins told her that a newspaper reporter had
been very kind in publishing some article and she gave her
for him a box of cigars. This is the story of Mrs. Sara Bar-
ker Smith as told by herself, in substance, on direct and
cross-examination. She was a woman, according to counsel
for contestants, reared in peculiar circumstances, with in-
felicitous parental surroundings, traveling two years under
an assumed name until married to Mr. Julius Paul Smith;
she traveled abroad, purchased laces — dutiable articles —
brought them into the United States, avoiding the custom
officers, defrauding the government, and necessarily commit-
ting perjury. Is such a person, asks this counsel, in a
position to enforce belief in her bare statement as to the
manner in which she obtained possession of that paper, the
Will? It is intrinsically improbable and circumstantially in-
credible. The counsel for contestants discredits her testi-
mony that she left Dama on the morning of his death
after watering the flowers under his wife's portrait, and after
doing other acts at his instance leaving him to rest in his
feeble condition, and asks, Is this story to be believed? Is it
not rather probable that she gave him the potion prepared
by the nurse, Mrs. Fannie Johnson, whose knowledge of subtle
poisonous essences, acquired in the apothecary shop, enabled
her to concoct and compound the ingredients for the chalice
presented to the lips of her revered and loved preceptor by
the respondent, Mrs. Sara Barker Smith? Is this inference
incredible? Counsel asks, How can counsel for respondent
claim that the character of his client is such as to
render improbable so monstrous a charge? Why is Mr.
French so proof against assault that his connection with this
case may not be attacked as founded in a criminal con-
spiracy ? Many a man as eminent as he has fallen from high
estate even in this community, after having for years posed
as models of rectitude and imposed upon the public as ex-
amples of morality. Not long ago a lawyer, prominent pro-
fessionally, a scholar of exceptional attainments, socially in
the most exclusive circle, trusted by thousands, was suddenly
found to have been for years engaged in the most extensive
IIS Coffey's Probate Decisions, Vol. 5.
peculations from the estates and trusts confided to his care,
reducing many of his clients from affluence to penury and
misery. And many other examples may be cited, at home
and abroad, of violation of trusts and dual lives, to illustrate
the text that the parties implicated in this charge were not
protected from suspicion by reason of repute alone. All the
circumstances surrounding this case point to the probability
that Dama's death was precipitated by mysterious means, and
justify the intimation that Mrs. Fannie Johnson's knowledge
of the occult effect of certain drugs was made available in
the emergency.
Counsel commented severely on the several and discrep-
ant stories told bj- Mrs. Sara Barker Smith concerning the
manner in which she obtained possession of the Will. How
did she know that that Will was made in May 1887?
How was she concerned as to whether or not there was a later
Will ? She always knew what were the contents of that Will ;
she helped to organize it, and was the mother of this Will ; that
is how she knew that it was made in May, 1887 ; this cannot
be controverted, asserts this counsel. The evidence of Miss
Belle Harris is true, he asserts; notwithstanding the acri-
monious assailment of Miss Harris, her testimony is insus-
ceptible of impeachment and stands unaffected by the acerb-
ity of the assaults of the adverse advocates. With regard to
the testimony of witnesses who are sometimes discrepant in
dates or forgetful as to details, counsel for respondent remarks
that no one has a perfect memory ; the best memory will be con-
fused in some particular, deficient, or defective, and it would
be unfair to deny credit to a witness merely because of some
error as to the date of an event, incident, or transaction, when
the witness on the whole possesses the elements of credibility.
Contestant claims that the court musl credit the statement
of .Miss Belle Harris or else find her guilty of perjury. Why
aid she perjure herself? She had no possible motive for
perjury, and her whole manner and demeanor were convinc-
ing arguments in her favor as a witness; she was precise in
detail and circumstantial in narration, with no effort to im-
press the court, but with every appearance of truthfulness;
Estate op Dama. 149
she is entitled to full credit, not a single contradiction in all
her testimony; the evidence of Miss Belle Harris was clear,
concise, consistent throughout, and was in no particular con-
tradicted; Burtis, who was called upon to overthrow it, was
one of the strongest props in its support, and shorthand re-
porter Knox's statements were retracted or modified by him
before he left the stand and shown by Miss Belle Harris'
testimony in rebuttal to have been physically impossible.
Her testimony is truthful beyond peradventure, and must
enforce absolute conviction in the mind of the court, accord-
ing to this argument. With reference to the will, Miss Harris
testified that she first learned of its contents when it came out
in the papers ; she did not make any search for a Will because
she thought the Knights Templar would look out' for every-
thing ; she did not infer from what the professor said the day
before he died that he left her everything in a Will;
there were others connected with that Will; she had not
made a statement to Mr. Thomas R. Knox, as he testified,
that Professor Dama was a "magnesia fiend" or any such
conversation with him. Mr. Knox testified that he first
heard of the death of Dama a few hours after the event ;
it was on a Friday in January, 1888 ; could not remem-
ber the day of the month; he related how he came to
be informed of the death and what he did thereafter ; he sat
up all Friday night in the house of the deceased ; his recollec-
tion was that the body Avas removed some time Saturday; he
returned to Dama's house on Saturday afternoon and he
thinks that he came back in the evening; he met Mr. French
and Mr. Burtis there in the afternoon ; Mr. Knox knew Mrs.
Sara Smith, frequently saw her in the house of Mr. Dama,
but not to form her acquaintance ; he had met her once after
that and made her acquaintance; he never knew Julius Paul
Smith in Dama's lifetime; Knox met Miss Belle Harris for
the first time after the professor died, that was the first time
to converse with her; had some conversation with her about
the professor's death; she said he was a "magnesia fiend."
that he was a great indulger in magnesia, that she would
frequently resort to expedients to correct this practice or
150 Coffey's Probate Decisions, Vol. 5.
habit, as she had learned by inquiry that it was very injurious
to the intestines, and she thought his intestines were ruined
in that way, and that that was what brought about his death.
Miss Eelle Karris called at Knox's house No. 2004 Bush street
on the Sunday morning following Dama's death; generally
she spoke of his death, she said he was a great consumer of
magnesia, that he was inordinately fond of it, and that he
consumed it as opium fiends did that drug; not in the same
manner, but with equal avidity; Miss Harris also spoke of
the professor's liking for herself and of his dislike for the
Waterhouses and others — the Rev. Joseph Worcester, among
others ; she spoke so much, she was the principal speaker, that
it was hard for Mr. Knox, according to his own statement, to
segregate portions of her remarks; she said that Mrs. Sara
Barker Smith had been long a pupil of the professor's, that
she was not a remarkable pupil, and that the professor did
not expect to make much out of her; Miss Harris said that
the object of her visit to Mr. Knox was to tell him, as he had
long been an official of the courts, that she thought there was
something wrong; she said she believed there must be another
Will, and that the only persons who possessed his genuine
confidence were herself, her sister and family, Mr. Knox's
wife, and Mr. Knox himself; she said the professor had
taught her gratis and that she procured pupils for him, and
she told of her close intimacy with him and of his great con-
fidence in her; she said nothing about the suddenness of his
death: Mr. Knox averred in his testimony that he had no
interest in the controversy; that he looked at the Will about
the time it was admitted to probate, just from curiosity, to
satisfy his mind, as he was acquainted with the deceased;
nothinj iirred to whet his appetite or curiosity; his
curiosity was original in this case from the fact of there being
such a Will ; he had testified that he had learned of the death
of P Daina on his way to the house of the deceased
from Rev. .Mr. Worcester; when Knox arrived at Dama's
house Mic nurse opened tlm door. Mr. Armstrong may have
informed Knox, but he had already Learned of the fad ; Arm-
: was ;t relative of Knox, a third cousin, he believed.
"magnesia conversation" took place both at the pro-
p's hi : so and at Knox's residence; the conversation in
Estate of Dam a. 151
the house came about in talking about the professor's demise,
decease or death, and the professor's theory that by pursu-
ing his method one could live to a great age and yet Dama
himself did not so live, and then the reason of that was dis-
cussed, and reference was made to his habit, and Miss Harris
spoke of his being addicted to the habit of using magnesia, she
did not use exactly the term "magnesia fiend," but said he had
that habit ; in regard to her statement that he had made an-
other "Will, Miss Harris said there was or had been another
Will in the possession of the Waterhouses made in their
favor while he was in their house, and she said that she knew
and that Knox knew that the professor entertained a strong
prejudice against Mr. Columbus Waterhouse and his family
and his brother, and that therefore there must be another
and a later Will; she said that in that Waterhouse Will
Columbus Waterhouse was named as an executor. Mr. Knox
disclaimed attempting to give the exact words of Miss Har-
ris ; in relation to the bedroom incident she said that she did
not at the time quite understand what Dama wanted, but
had no reason to distrust him as he had always treated her
as a perfect gentleman, but as she was a young lady alone
in the house, she thought she ought to be cautious in the cir-
cumstances; Mr. Knox had said when he learned of the con-
tents of the Will that he thought he ought to have left some-
thing to William T. Cummins, and as Dama had no relatives
here and did not like his wife's relatives, Knox thought he
might have remembered his friends here, among others Knox
himself or his daughter, and considering what Dama had said
about his inability to accomplish in the case of Mrs. Sara
Barker Smith what he had done for other pupils, notwith-
standing her diligence and industrious efforts to succeed,
Knox thought and said that the bequest to Mrs. Smith was
an absurdity, a strange Will. Dama had often told Knox
that Mrs. Smith and her husband were very wealthy, and that
and the other circumstances made Knox remark the strange-
ness of the Will. Knox related in his testimony what the
professor said concerning the difficulties of developing the
voice of Mrs. Smith, and that by reason of those difficulties
he could not "finish" her, notwithstanding her arduous en-
deavor and earnest anxiety to succeed; by reason of her
152 Coffey's Probate Decisions, Vol. 5.
nature he was unable to do anything. Miss Harris says that she
told Knox that she thought granulated citrate of magnesia was
not good, but she said nothing to the effect testified to by him as
above set forth, and denied the statements imputed to her by
Mr. Knox; she declared that she made no such statements to
him on that Sunday as he testifies to about the Waterhouses or
others, including the Rev. Mr. Worcester; nothing of the kind
occurred at that time or place ; she once called at his house
on Sunday morning, the 12th of February, 1888, and stated
to him the object of her call, that Mr. William T. Cummins
was very nervous and would like him to go and stay with
him in court the next day, February 13, 1888, when the con-
test was coming up ; she meant when the hearing of the pro-
bate of the Will was to come up; Miss Harris arrived at
Knox's house at about half-past 8 and stayed until almost
10 o'clock; she had to wait there at least fifteen minutes;
parts of the conversation sworn to by him as taking place
at the other time occurred on this occasion, February 12,
1888, some in relation to the movements of the gentlemen on
the evening of Mr. Dama's death, and that she doubted Mrs.
Smith's Will of May 8th, and of Mr. Dama's liking Mr.
Knox's little girl. Miss Harris did not suggest to Mrs. Smith
going downstairs on the occasion of her coming to 317 Mason
street after Professor Dama's death, and she denies the truth
of Mrs. Smith's testimony in that regard. Mrs. Smith asked
Miss Harris on that occasion who would be attorney for the
estate; Miss Harris did not tell Mrs. Smith that Mrs. Water-
house had been searching for a Will; Miss Harris did have a
conversation with Mr. French but not such as he says in his
testimony; French asked her to call at his office; the suggestion
did not proceed from her, and she denied the truth of the
testimony of Mr. Frenoh with respect to that interview. Mr.
French had testified that he recollected meeting Miss Belle
Harris on the street one day and telling her she might come
into his office in response to her suggestion; lie had entirely
forgotten the circumstance of meeting her until the cross-
Estate of Dama. 153
examining counsel mentioned the matter and then Mr.
French recalled it; Miss Harris called at French's of-
fice after that accompanied by another lady, a stranger to
French ; Miss Harris requested this lady to withdraw from
the room; the lady did so; French said to Miss Harris then
and there, "I think there is no occasion for an interview be-
tween us, I do not desire to have an interview"; soon after
Miss Harris arose and withdrew from French's office; French
had no recollection of any such conversation as was implied
in the questions of counsel for contestants ; Miss Harris
declared that Mr. French spoke to her about Mr. Smith
being a millionaire ; she denied that she said to Mr. French that
she was Professor Dama's confidential friend and that she
wished to be placed in charge of the house ; she denied also that
she said to Mr. French that Mrs. Waterhouse claimed to be
Dama's best friend, but that she was not such, as the professor
disliked the Waterhouses very much ; Miss Harris said that she
did not "rummage" about in the house on the night of the pro-
fessor's death nor was she "desirous" of overhauling things
there, as Mr. French testified; she did not throw herself
across the professor's body when she went into his room after
his death, as Mrs. Fannie Johnson testified ; Miss Harris de-
clared that Mrs. Johnson's statements as to her examining
papers and rummaging drawers were false ; when Miss Harris
came into the house at 317 Mason street after the professor's
death Mr. Burtis and Miss Lola Lowrey, a pupil of the profes-
sor's, were in there. Miss Harris testified that Mr. French said
to her that he once had a housekeeper for whom he put in a
claim against an estate for $2,000 for services as such house-
keeper, whereas otherwise she would only get $200; this was
said to Miss Harris December 11, 1888, at his office at 528
California street, San Francisco; Miss Harris was in that of-
fice at that time about half an hour and Mrs. Mary Cover
was with her there; Mr. Brandon, a clerk for Mr. French,
was in and out; Miss Harris had read over Mr. French's tes-
timony in this case and also Mrs. Johnson 's more than once ;
Miss Harris had written out some questions to be put to wit-
nesses, Mr. French, Mrs. Smith, and Mrs. Johnson ; Miss Har-
154 Coffey's Probate Decisions, Vol. 5.
ris had read over testimony of Mr. Burtis, but did not pre-
pare questions to be propounded to him ; she had been at Mr.
Kowalsky's office perhaps five times about the case; she had
also seen Mrs. Waterhouse, Mrs. Bradstreet, Miss Kate Myers,
and her sister Mrs. "William T. Cummins ; she. had not seen
Mr. Bellini ; when Miss Harris read over the testimony in
presence of Mrs. William T. Cummins they discussed the
evidence: Mrs. Cummins assisted Miss Harris in preparing
questions ; she suggested questions more than once, could not
say how many times; Miss Harris did know Captain Gib-
bons, first in 1885, on the "John R. Kelly"; afterward saw
him in Mr. Dama's house on Saturday afternoon, 21st of
January, 1888 ; did not tell him that Mr. Dama had made a
Will and had left it in good hands, did not so remark to
Mrs. Captain Gibbons in the Lick House; Miss Harris was
at the professor's house all day Saturday, the day after his
death; she should judge it was before 4 o'clock of that day
that she saw Mr. French there ; Miss Harris said that she
may have taken some writings out of Professor Dama's house
after his death and prior to his funerftl, two little eases with
writing on the outside ; when Miss Harris was in Mr. French's
office he was in the inner office; Mrs. Cover was with her;
Mr. Brandon, the clerk, was in the outer office; the door be-
tween the two offices was closed during their conversation;
Mr. Brandon was in and out at times.
CIRCUMSTANCES OF THE DEATH OF DAMA.
With regard to the statement of Miss Harris in conflict
with the testimony of Mrs. Fannie Johnson, the nurse, and
Mr. French, the attorney, this may be a proper point at
which to consider the contrary testimony: Mrs. Fannie John-
son testified that her name in German is Johanson and that
she was born in Hamburg; she was engaged by Luigi Dama
as his housekeeper through Mrs. Helen Cushman of Alameda :
she went to Dama's house on the 14th of January, 1888, at
317 Mason streel ; oobody but he occupied that house, he was
very sick with the dropsy, almost helpless, so much so that
she had to dress and undress him: he was completely gone
in; he had both Doctors Tisdale, senior and junior, in at-
tendance upon him; Mrs. Johnson knew them in Alameda by
Estate op Dama. 155
seeing them in various houses; she went to Dama's on Satur-
day and he died the following Friday ; the young Doctor Tis-
dale was there on Tuesday, the old doctor only came on Run-
day; after young Tisdale left, Dr. Brigham came Tuesday
afternoon the first time to consult with him ; Mrs. John-
son recommended Dr. Brigham; he tapped Dama on Wed-
nesday; Mr. Burtis was present; they took two bucketsful
of water from him, then was put to bed and bandaged up ;
he stayed in bed until the middle of the night of Thursday ;
from Thursday to Friday he had no one but the nurse to
wait upon him; prior to his being tapped he said to her that
if he should stand that pain and agony any longer he would
rather than endure it take his own life; when Mr. Burtis
went away after the tapping he left her his address so that
if anything should happen she might know where to find him;
Dama felt very weak Friday morning; he ate nothing; he
died at twenty minutes to 12 ; from the time of the tapping
until he died he was visited by Miss Belle Harris, she came
every day, also Mrs. Sara Barker Smith; she left about
twenty minutes or half an hour, perhaps, before he died;
Mrs. Johnson gave him the medicine that Dr. Brigham pre-
scribed ; the medicine was cream of tartar and gin mixed,
which he was to drink whenever he was thirsty, according to
the Doctor's directions; shortly after Mrs. Smith went away
the nurse went out of the room for a little while and when
she came back she thought he had fainted and found that he
was dead ; she tried to revive him but could not ; she sent for
a messenger and sent for Mr. Burtis; he came and then he
sent her with a note to his store ; she returned and after she
was home a little while Miss Harris came in, and when the
nurse told her Dama was dead Miss Harris rushed into the
room and threw herself across his body ; then Miss Harris
came out and said she was glad Mrs. Johnson was there ; the
nurse did not hear any conversation between Mr. Smith and
Miss Belle Harris; they were conversing, but she did not
hear the words, she did not know what was the subject mat-
ter of their talk; Mr. Burtis dined with Mr. Dama every
night while the nurse was there except the night Dama was
tapped ; Miss Harris was not there at all on Friday morn-
ing; she did not tell her that he said that morning that he
156 Coffey's Probate Decisions, Vol. 5.
felt so well that he could dance in the ballet, and she denied
the other statements imputed to her in the testimony of Miss
Belle Harris ; Mrs. Johnson had some lunch spread in the
dining-room on the evening of the day Dama died ; Miss Har-
ris partook of some, Mrs. Smith did not ; Mrs. Smith came
on Saturday for the first time after he died; Mr. Burtis told
the nurse next day, Saturday, that she had better get some
tea for the ladies, nobody else said anything about it. At
the time Mrs. Johnson went to Professor Dama's house there
was a woman there who did not stay long and she did not
know her name ; Mrs. Johnson remembered seeing Miss Belle
Harris before the date of her testimony (March 19, 1891)
at the drug store or patent medicine store of R. R. Hay, 1019
Market street, but she denied the testimony of Miss Harris
as to what occurred there ; Mrs. Johnson called subsequently
at Miss Harris' house on Geary street and Miss Harris told
her she thought the Will was a forgery, that the Knights
Templars were after her (Mrs. Johnson), and that she should
not go to see Mr. French and Mrs. Smith, if she were to see
them she would get herself into trouble, while if she stood
by her (Miss Harris) she would be all right; Mrs. Johnson
contradicted in detail the statements testified to by Miss Har-
ris in regard to their interviews; Mrs. Johnson cooked dinner
for Mr. Dama the evening before he died; dinner was served
in his room, he being in bed; the table stood by the side of
the bed ; Mr. Burtis was there ; Mr. Dama ate heartily and
said to Mr. Burtis that he would have a dance next week if
he continued to feel so well; next morning he complained
that the dinner did not seem to agree with him; he was rest-
less during the night; he asked what he had eaten and he
and the nurse counted over the things and among others was
.im| apricots; he asked where they had been procured;
the nurse said that Miss Belle Harris sent them; he said
that that was what hurt him, the apricots; on the Sunday
previous the nurse had prepared for dinner roast suckling
pig sent by Mrs. Sara Barker Smith; the Rev. Mr. Worcester
was at. the dinner hut declined to partake of the pig on ac-
count of religious scruples, ;is he did not oat meat on Sun-
day, (in cross-examination .Mrs. Johnson testified that she
was horn in Hamburg the 24th of July, 1848; her maiden
Estate of Dama. 157
name was Johanson; she worked for her living there, taught
school at seventeen years of age, afterward worked in a lace
store, and went to London, and left there for New York on
the steamer "Canada" in 1874. She was questioned with
reference to her coming to San Francisco, where she lived
and what she did after arriving in the city, and gave many
details of her history down to the time that she left the em-
ploy of Mr. Hay, 1019 Market street, when she went to Ala-
meda and worked for various families; among others she
worked for a Mrs. Ackley, where she made the acquaintance
of Mrs. Cushman, through whom she learned of Daraa's
wanting a nurse; she did not meet Mrs. Smith there; did
not know of her then, but subsequently was informed by
Mrs. Cushman that Mrs. Smith used to visit Professor Dama
every day to take lessons. Mr. Dama engaged her as his
housekeeper at twenty dollars a month and she could keep
her little girl ; she was to cook his food, prepare his meals,
and render other domestic services, but after she was there
awhile she found that he was very sick and she attended
upon him ; Mrs. Smith sent some articles of food, extract of
coffee, and such like things ; a young girl brought them, Mrs.
Smith never brought them; after Mr. Dama's death the first
ones to be there together were Miss Harris and Mr. Burtis ;
Mrs. Smith never took any tea in the house. Being ques-
tioned as to her handwriting, Mrs. Johnson said that she
signed her name "Mrs. Johnson" because she had always
gone by that name ; she was not a married woman. At the
request of cross-examining counsel she wrote at his dictation
on the judge's desk the contents of the disputed Will, her
writing being marked Contestant's Exhibit D-56. After she
left Mr. Dama's house she did not have any work for quite
awhile, then she worked off and on in Mr. Hay's store, and
also opposite Mr. Dama's house for a Mrs. Murphy, and
worked for others here and in Alameda, where she worked
for Mrs. Mahoney for three months and attended her during
confinement, and then she came over and took the house
where she is now living in San Francisco ; she does not re-
member to whom she took the note from Mr. Burtis at 317
Mason street to his store on the day of Mr. Dama's death;
it was raining that day; it was after 12 o'clock, but she could
158 Coffey's Probate Decisions, Vol. 5.
not remember the hour; she did not take any note at that
time; she knew Mr. Castelhun, the attorney, and did not say
to him at his office, 502 Montgomery street, about two years
ago, that an awful crime had been committed at Professor
Dama's house on Mason street, and that if she were to tell
what she knew it would make a sensation that would shake
society; she did not say anything of that kind, but she had
been told by counsel for contestants, in his office, that she had
so said to Mr. Castelhun and she denied it, and the coun-
sel told her that he would not believe anything she said by
way of denial ; she knew Mr. Astorg ; she worked for him for
about three weeks, taking care of the house, going there in
the morning and coming back in the evening; his wife was
there the first week; she is now in the east; she was a friend
of hers to a certain extent; if she talked to her about 'the
Dama case she really did not remember; Mrs. Astorg some-
times came to 317 Mason street, after Dama 's death ; on one
occasion she was inebriated, and Mrs. Johnson told the lady
who came with her that she could not come in; she never
told Mrs. Astorg that she had been with a man who had died
suddenly, and did not tell her that he had been poisoned
or that she knew all about poisons, nor how to administer
slow poison; she had no understanding of the use of medi-
cines; never studied Latin nor chemistry; when Mr. Dama
was dead Mrs. Johnson sent a note to Mr. Burtis by a mes-
senger boy; when Burtis came he did not do anything, he
walked up and down the room ; she told him how it occurred ;
Dama was alone at the time of his death; the nurse was in
the front room ; when she came into his room she thought
he had fainted and tried to revive him, but found he was
dead; she was not in the room all the time while Burtis was
there; in the note she sent to him she told him to come to
the house, that it was all over with Mr. Dama, meaning that
he was dead; on the night that Dama was tapped Burtis
gave her his address, his business card, and said if anything
happened to Dama to send for him; when she went to the
drag store at the corner of Geary and Mason streets she
called for ;i messenger; her little girl remained in the house:
no one else was there with the body of Dama; when Burtis
came and while she went on the message from him to his
Estate op Dama. 159
store her daughter remained in the house with him and the
body; Mrs. Johnson had not read nor seen Burtis' testimony;
when Burtis came Mrs. Johnson felt bad, but she did not
think she was agitated or excited; she did not say to Mr.
Burtis when he came on that morning that this lady had
called and when she left the professor called to her and when
she reached his bedside he was dead ; Burtis remained there
a couple of hours, she could not say the exact time; she never
wrote but one note to Burtis, and could not be mistaken
about that fact; she could not tell how many times she had
met Burtis since Dama's death; she met him once on the
ferry-boat when she was coming over from Alameda; he had
not been there to see her; she was four or five times at his
office; may have spoken about Dama's affairs, but she could
not remember; Burtis was very busy and they only spoke
about work that he gave her; she thinks she gave him her
address; it was a year after Dama's death before she began
doing work for Burtis; it was in the winter that she did the
work, but she could not tell the month. Mrs. Johnson, at
request of counsel for contestants, wrote from dictation certain
words and also the contents of "Short Memorandum" (Con-
testant's Exhibit E-57, P-58, G-59). Mrs. Johnson was in
Mrs. Smith's house about two months before the date of her
testimony (March 24, 1891) ; went there for no particular
purpose; just went to call upon her; had not seen her for
two years; she did not send a letter to her; Mrs. Johnson
was there perhaps fifteen minutes to half an hour; had been
to see Mr. Lloyd four or five times, he wanted to see her to
know what she knew about the case ; she told him all she
knew ; she did not go to see Mr. French. Mrs. Johnson said
that she felt deeply interested in this case as she had been
falsely accused. The gist of the false accusation against
Mrs. Johnson seems to be that she was criminally concerned
in the death of Mr. Dama, and that she had prepared a potion
which was administered to him which precipitated his exit
from this earth, and counsel for contestants compared her atti-
tude with that of a recent confessor of crimes, the uxoricide
Zwald, who, in such strange circumstances, overcome by the
stings of conscience, confessed that he had poisoned his first
wife and strangled a second, and yet no one ever suspected
160 Coffey's Probate Decisions, Vol. 5.
that by arsenic h* consummated the death of one and by
strangulation the other, and counsel read from a daily jour-
nal an article on "Crimes that Lie Hidden." taking for a
text the case of Zwald : "Why did Mrs. Johnson weep if she
was innocent? Why shed tears and ask for forgiveness?
Forgiveness for what? Was it because conscience forced
tears from her eyes? Why could she not contain herself
in presence of that dead body? Was it because of the crime
that lay hidden in her breast, and which if she had un-
bosomed and unburdened herself would have exposed the
criminal conspiracy and bring to light the criminal conspira-
tors ? The counsel for contestant says that she told the story
of her shame coldly and callously.
Mrs. Johnson is a woman of unusual intelligence and good
education, the revelation of the misfortune of whose life came
involuntarily as a result of cross-examination rather than as a
callous confession of shame; she may be the possessor of a
guilty secret, and, if so, it is to be hoped that it will become
evident in time for the reparation of any wrong her conceal-
ment may have caused ; but the impression her demeanor on the
stand made upon the mind of the court was that she thought
she was entitled to more consideration than she had received in
a pecuniary sense from those whose interests her evidence was
calculated to advance. Mr. Kelly, for contestant, dilated
graphically upon the facts that occurred just prior to the death
of Dama, the employment of the nurse, Mrs. Johnson, suggested
by Mrs. Cushman, the lifelong friend of Mrs. Smith, and the
engagement of the Dr. Tisdale, senior, through the direct
agency of the same Mrs. Cushman ; the refusal of Tisdale to
tap Dama on the ground that he did not want to have Dama's
death on his hands; the employment of Dr. Brigham and the
operation; the subsequent visit of Mrs. Smith; Dama's ela-
tion immediately after the tapping, afterward his statement
that lie was preparing his toilet for death; the testimony of
Dr. Brigham — to which a considerable decree of discredit
must attach, notwithstanding his high professional reputa-
tion, because he testified without invoking the protection of
lie- law as to those confidential matters. Who was the last
person with the deceased prior to his death? Mrs. Smith, the
pondent in this case. That is the evidence, argued Mr.
Estate of Dama. 161
Kelly, and yet Mrs. Smith has sworn that she first learned
of his decease on Saturday when Miss Myers called at her
house to inform her.
WHAT OCCURRED IMMEDIATELY AFTER DEATH OF DAMA.
As soon as Professor Dama dies Mr. Burtis is there
within a few minutes after, on that very Friday morn-
ing; the utter improbability of Mrs. Johnson's statements
that she sent a messenger boy with a note to Mr. Bur-
tis' store is apparent, for Mr. Bjolstad and Mr. O'Connell,
who were employed there, testify that Mr. Burtis was not
at the store that morning. Mr. Burtis must have received
secret information, argued this counsel, because he was
one of the conspirators in that combination; when Mr. John
T. Harris went to Dama's house there he met Burtis, who
said, the very first thing, "Here are two notes I want you
to deliver." The meeting of Mr. Burtis and Mr. French,
their sending for Mr. Booth and Mr. Sumner, and the refusal
of Mr. Booth to act as attorney, and the conference in which
this occurred counsel considered as remarkable in several as-
pects; the example set by Mr. Booth in refusing to act as
attorney was approved, and Mr. French's conduct in con-
senting to act as attorney criticised and denounced as a pre-
conceived plan; the consent of Burtis to act as special ad-
ministrator was also criticised ; the visit of French and Bur-
tis to the house of the deceased professor, the rifling of the
drawers and conduct at the house and the circumstances of
that occasion were called to the especial attention of the court.
Mr. Burtis testified that Exhibit No. 3 was found in that
drawer; that is the "Altered "Will." How was it, asked
Mr. Kelly, that Mr. Burtis and Mr. French testified that
they had never heard of Mrs. Sara Barker Smith, when her'
name is in this very paper, Exhibit No. 3, which they swore
they had looked over with the other papers which they found
in the drawer? This is a fact in itself, he argued, which
shows that the "Will was forged; and, in this connection,
this counsel called the court's attention to the very pecu-
liar manner in which Mr. Burtis testified in regard to that
matter (see page 189, judge's manuscript notes argument;
also page 70 of the official reporter's transcript of testi-
Prob. Dec, Vol. V— 11
162 Coffey's Probate Decisions, Vol. 5.
mony) : "Q. Did you make a search for a Will before you
applied for special letters? A. No, sir; because I did not
care to; I did not feel sufficient interest, I never heard any-
thing about a "Will ; I did not know anything of the exist-
ence of a Will." Now, the petition of R. W. Burtis for
special letters contains the recital that the petitioner had
made due search and inquiry for a Will but had found none,
and had reason to believe there was one in the safe deposit
vaults. What further took place there that day, their ac-
tions and conduct were enough to make Miss Belle Harris
suspicious that there w r as something wrong, claims the coun-
sel; their actions showed that they were actuated by some
sinister purpose that could only be accomplished by securing
possession of all the effects and papers of deceased. What is
Mr. French's testimony? As to Mr. French's connection with
this case he testifies that he knew Luigi Dama very slightly ;
met him in Golden Gate Commandery ; did not know him
previously, what his business was or where his house was.
Dama died January 20, 1888 ; on Friday afternoon of that
day, while sitting in his office at 528 California street, French
received a note from R. W. Burtis informing him that a
member of their Commandery died at 317 Mason street ;
French was the Commander, and in such case it was the cus-
tom for the Commander to attend to the matter; French
could not leave his office at the time, being engaged with a
client, and he sent word to Mr. Burtis that he might see him
in his office at half-past 4 of that day; French also sent word
to F. W. Sumner and A. G. Booth, of the Commandery, to
confer as to what he should do; about half-past 5 or 6 o'clock
French went to Dama's house with Burtis and Sumner and
found there a Miss Belle Harris, Rev. Joseph Worcester, Dr.
Brigham, Mrs. Columbus Waterhouse, and the undertaker.
Mr. Ealsted; the body was taken charge of by Mr. Halsted
and Ids assistant; Mrs. Waterhouse said that Dama had lefl
instructions to have his body embalmed and senl east to be
buried by the side of his deceased wife, in Bath, Maine; this
wa.s said also by Miss Harris and Rev. Mr. Worcester and
several others presenl ; French gave no directions; Miss Belle
Harris said that she was Dama's Confidential friend and
wished to be placed in charge of the house; she said that
Estate of Dama. 163
Mrs. Waterhouse claimed to be his best friend but that she
was not such, as Professor Dama disliked the Waterhouses
very much; French told Miss Belle Harris that she might
be in charge of the house, and he asked Mr. Burtis to remain
there that night and see that no one interfered with the house
or the effects; French did this in pursuance of the custom
of the Commandery and so informed Miss Harris; French
did not know at the time that the deceased Professor Dama
was a member of the "Blue Lodge," and he believed at the
time that Dama was not a member of any lodge in San Fran-
cisco ; French subsequently discovered that Dama was a mem-
ber of a lodge here, the Mission lodge, and called upon the
Master of that lodge, Dr. W. E. Price, and the Master de-
clined to act because he preferred the funeral ceremonies to
be in charge of the Commandery; after French told Miss
Harris that she might have charge of the house, and at his
suggestion Mr. Burtis went to Professor Dama's clothing and
took out and laid on the desk what he found in his pockets ;
French made a list of the articles and had it in court; this
is the list : Cash two ten-dollar pieces, silver coin, watch chain,
Templar cross, Neapolitan charm, locket, two bunches keys,
eye-glasses, medicine envelope Drs. T, P. & C. L. Tisdale.
French noticed the keys because of what Miss Harris told
him of Dama's having a box in the California Safe Deposit
Company; there was a key similar to one for French's own
box in that deposit company ; French said if Dama had any
valuable papers or effects there was where they would be
found ; Miss Harris said that the professor had some money
in a cigar box and she was suspicious some one might take
it ; Burtis searched a cigar box, several boxes, but found noth-
ing; French asked Miss Belle Harris to give him a list of the
names of Dama's relatives so that he might telegraph to
them ; she said that she knew where all his papers were and
she took out a slip of paper and wrote down some names :
Mrs. E. Randall, 59 Blackstone street, Boston, Massachusetts;
Mrs. Benj. Randall, 31 Monmouth street, East Boston, Mas-
sachusetts, daughters of Mrs. Benj. Randall, Miss Emily Ran-
dall, Miss Anna Randall, Miss Jennie Randall, Mrs. A. W.
Forbes. French noticed two ordinary deposit books in the
desk and told Mr. Burtis to take them out and he would take
1G4 Coffey's Probate Decisions, Vol. 5.
the numbers and then he might replace them, as French did
not wish to touch anything himself; when French was ask-
ing Miss Harris if there were any other names she said yes,
and Mr. Burtis took down the name of Captain Gibbons, care
of J. F. Chapman & Co., 22 California street, San Fran-
cisco, Captain Edward Randall, send all in care of John
Ballou. French had never been in Dama's house before and
never knew where he had lived until this time; French never
told Miss Harris that he had been there before, and he con-
tradicted her testimony as to what passed between them upon
this occasion; there was no occasion for any winking between
Burtis and him; the next day, Saturday, at about 10 o'clock,
his clerk, F. D. Brandon, was instructed by him to prepare
petition for special letters of administration in the estate,
French had previously requested Mr. A. G. Booth to act as
attorney, but he declined, and so French acted in the mat-
ter; Mr. Brandon, his clerk, got up the form, except the
clause about a Will, which he told him to put in the peti-
tion for special letters ; French sent Mr. Brandon down to
the store of Mr. Burtis, 41 Second street, to have it signed;
he had not seen Mr. Burtis that morning; when it was re-
turned signed French took it out to the New City Hall with
an order of appointment which the judge signed, January
21, 1888; French came out to the courtroom and found Mr.
E. J. Casey, the courtroom clerk, at his desk writing up the
minutes; he inquired for Judge Coffey, but he was not in;
this was about 11 o'clock, and French waited until nearly
1 o'clock, then French went to lunch and returned at about
half-past 1 o'clock, but the judge was not in and he waited
about one hour before he came, and then the judge signed
the order; then he telephoned to Mr. Burtis to come out and
he arrived a little before 4 o'clock; Burtis gave his bond,
<_'<>t special letters; by that time it was after 4 o'clock; Bur-
tis and French came, took the cars, rode down to Mason
street, and went to 317 Mason street, thinking they might
find the Rev. Mr. Worcester there, but did no! find him there;
found Ml - . Thomas R. Knox outside the house; they went to
French's office at . r >28 California street, and alter they came
in the Rev. Mr. Worcester came in; French was in the outer
■e and asked Mr. Worcester to step inside to his private
Estate op Dama. 165
office where Mr. Burtis was; French then went in, and after
some conversation the three went to the Safe Deposit Com-
pany and produced the special letters and examined the box;
it was for that purpose that they got the special letters;
French narrated the proceedings at the safe deposit office
when the box was opened; Burtis carried the box out to the
outer room where Mr. Worcester and French were and there
in their presence the box was opened and the papers were
taken out and examined in presence of the four — Mr. Bur-
tis, Mr. Worcester, French, and Mr. Curtis, the manager of
the Safe Deposit Company; they first looked to see if there
was a will, but found none; they found an envelope marked
"Private Paper," and Burtis cut the edge open with his
knife; French watched closely for he expected it would con-
tain a Will; they found there Respondent's Exhibit 1, "the
Short Memorandum," also the paper called "the Long Memo-
randum," Respondent's Exhibit 2; Mr. French did not then
know Mrs. Sara Barker Smith and never had heard of her;
Burtis then put back all the papers without further examina-
tion ; it was then after 5 o 'clock, the gas was lit ; French in-
quired of both Mr. Worcester and Burtis if they knew of a
Mrs. Smith and they both said "No," had never heard of
her ; they then separated and French went home ; the next
morning Burtis and himself met at his office and examined
the City Directory but found no name of Sara Barker Smith
oor clue to her identity; they went to 317 Mason street and
the nurse, Mrs. Johnson, told them that Mrs. Smith had been
there and said that there was a package of papers, at her
house, 2505 Washington street, and that she was prepared
to deliver it to the proper party representing the estate of
Luigi Dama, deceased; they w r ent there and met Mrs. Smith,
and announcing their errand, she, after some conversation,
produced a package encased in brown wrapping paper and
tied with a knot which was difficult to untie, and Mrs. Smith
said that Mr. Burtis would find it hard to unloose as Pro-
fessor Dama told her at the time that he tied it with his
peculiar knot; Burtis finally cut the string with his knife,
and there was taken out the paper in the yellow envelope
marked "Private Paper" (marked Plaintiff's Exhibit 28),
which was then in the same condition as it was at the time
166 Coffey's Probate Decisions, Vol. 5.
it was exhibited to the witness upon the trial (February 10,
1891), except the opening at the edge where Burtis slit it
open ; in that yellow envelope was inclosed a white envelope
(Respondent's Exhibit 29, marked "Will and Testament"),
and that was slit open by Burtis and out of it was taken the
"Will which was read aloud in presence of them all ; after the
reading Mrs. Smith said, "This Will is a surprise to me, I
had no need of it, as we have enough without it, and I wish
he had left it to somebody needing it more," and Mr. Smith
said he was sorry that it had ever been made; Mrs. Smith
said she did not know what to do, as she had no experience
in such matters; French told her she should have to file it
within thirty days and with it a petition for probate, and
that she ought to consult her attorney; she said she had no
attorney as she had no occasion for one, and asked if he,
French, would not act; he told her he had a delicacy on ac-
count of his official position in the Commandery, but finally
he consented to take charge of the papers for the time ; after
reading the Will they considered the clause about testator's
wishing to have his body embalmed, and at the request of
Mrs. Smith, French and Burtis consented to attend to that;
Burtis and French then went to the residence at 317 Mason
street and reached there about 2 o'clock in the afternoon,
stopped there but a moment, and then went to the under-
takers on Mission street, Halsted & Co., arriving there about
half-past 2 or 3 o'clock, and inquiry being made for a pro-
fessional embalmer, Halsted mentioned Dr. Lyford and Dr.
Kenyon ; he telephoned for the latter and they waited, and
Dr. Kenyon came in in about fifteen minutes and undertook
the work of embalming; French told him that the remains
were to be shipped east for interment : Burtis and French
then went to the telegraph office and sent telegrams to the
i. one to Benjamin Randall and one to John W. Ballou,
Bath, ,M;iine; French sent his telegram to Ballon signing his
name as "Commander Golden Gate Commandery," because
liallou was occupying a similar position in Bath, and French
assumed that the remains would be consigned to the care of
Commandery at Bath, Maine, and they were so shipped;
French received no response from Randall, but a letter came
from Ballou; French wrote to Randall on the 3Lst of Jan-
Estate of Dam a. 167
nary, 1888; he also sent other telegrams; French thinks he
received a letter from Ballon ; French had nothing more to do
with the body imtil the Sunday subsequent, when with his
Commandery he went to the undertakers and they escorted
the body to the First Congregational Church, Rev. Dr. Bar-
rows, Mason and Post streets, where the funeral took place;
French sent another telegram to Bath, Maine, to Frank A.
Palmer, Eminent Commander, Dunlap Commandery, Knights
Templar, on January 31, 1888, announcing that the body
had been sent east by express on Sunday evening and to
notify the Randalls.
Mr. French contradicted certain statements of John T.
Harris, a witness whose evidence is here given substantially
in full : Mr. Harris is a real estate dealer ; the father of Miss
Belle Harris, Mrs. Ida Cummins and Mrs. Lillian P. McEl-
roy ; he knew Luigi Dama ; last saw him alive on the evening
of Thursday, January 19, 1888 ; Dama had an operation per-
formed a few days previous; on the 20th of January, when
Harris saw Dama again, he was dead; at that time Harris
was selling merchandise for R. W. Burtis, 41-43 Second street,
San Francisco; Harris saw Burtis between 11 and 12 o'clock
in the morning at Dama's house; Harris went there because
the nurse, Mrs. Johnson, came to him at the store, stopped
on the threshold, beckoned to him and said, "The Doctor
(Dama) is dead"; Harris went to the house and saw there
R. W. Burtis; he was the first and only person Harris saw
there at the time; Burtis said, "Well, Mr. Harris, the pro-
fessor is gone, I suppose in Heaven with his wife, one that
he much loved"; Burtis was walking the floor at the time
with his hands in his pockets ; after a little while Burtis said,
"Mr. Harris, I would like you to deliver two notes for me,
one to Mr. French, an attorney on California street, and one
to Mr. Knox, a reporter in Judge Sullivan's court"; Harris
delivered the note to French in person and to a man in Mr.
Knox's office, Knox being absent, a Mr. Armstrong, who vol-
unteered to give it to Knox ; Harris frequently dined with the
professor at the house of his daughter, Mrs. W. T. Cummins ;
Professor Dama was a very careful man ; in stature he was
medium in height, about one hundred and seventy-five or one
hundred and eighty pounds in weight; Harris met French
16S Coffey's Probate Decisions, Vol. 5.
again two or three days previous to Professor Dama's fu-
neral ; Harris went there to inquire as to the time of funeral ;
French wished Harris to say to his daughter Belle to be as
quiet as possible and if asked any questions to say nothing;
Harris delivered the message to his daughter; Harris had a
talk w T ith Burtis about the same time ; Burtis made the same
request as coming from French ; a short time afterward Har-
ris asked Burtis what he meant, and he said he thought that
Mrs. Smith would remember Belle kindly out of her legacies
from the professor; Harris left Mr. Burtis' employ January
30, 1889 ; it was after that when he entered another employ-
ment ; he ceased to be an employee of Mr. Burtis on that
date, although he was in and out for some time thereafter;
Harris did not profess to know anything about the hand-
writing of Dama ; he was on fairly friendly terms with Mr.
Burtis ; had had no disagreement with him ; the conversations
with him were mostly before Harris left his employ ; one was
at about the time of the probate of the "Will (February 27,
188S), something about receiving his pay — Harris could not
recollect distinctly. Mr. French testified that he had heard
on the Friday night when he went to the house of Dama
some talk about a Will from which he inferred that there was
a Will; it was distinctly stated that Dama had left instruc-
tions as to embalming his body and French inferred there-
from that there was a Will, but it was not said in tenor or
in terms; French inferred also that Columbus Waterhouse
and Rev. Joseph Worcester were coexecutors because of their
intimacy Avith Dama; French professed to have always felt
kindly toward Professor Dama and always treated him cour-
teously ; never had any conversation with Dorn or Water-
house in which either said that Dama disliked French ; French
came out to the New City Hall on Saturday, January 21,
1888 ; he could not recollect who were the bondsmen without
referring to the bond itself, and upon that being produced
and examined by him he said ho could then tell all about it;
that bond was prepared by him before he came out to the
New City Hall at 10 o'clock in the morning of Saturday.
January 21, 1888; and was .K-knowledged by him before No-
tary George 'I'. Knox; the bond was prepared in advance ami
in anticipation of its approval by the judge; French said
Estate op Dama. 1G9
that when they went to the safe deposit there was a seal on
the box ; Mr. Curtis, the manager, took the seal off ; French
received the $100 mentioned in his account of the special
administrator settled June 8, 1888, for services rendered as
attorney for Special Administrator Burtis ; French declared
that he was interested in the outcome of this controversy only
as to the proper disposition of the property of the estate,
and such reasonable attorney fees as might be allowed him
by the court ; he had no contract with the proponents of the
Will ; never told anybody that he was to receive $5,000 if the
Will should be sustained ; at the time that the Will was pro-
bated, French declares that he did not hear of its being a
forgery; Mr. Naphtaly was then present in court; ex-Judge
M. A. Edmonds was there also and engaged in interrogating
the witnesses, but French did not know that Edmonds was
prevented by his illness from undertaking the contest ; French
did not counsel or advise with Mrs. Smith or Mr. Burtis as
to the production of the alleged Will which is charged to be
a forgery, nor with regard to the memoranda found in the
safe deposit box ; he was present in court when the Will was
offered for probate on February 13, 1888, when Mr. Naph-
taly was there, but he could not at the time of testifying upon
the contest state from memory what occurred at the original
probate; he remembered being angry when the witness An-
tonio Bellini refused to swear that he had signed the instru-
ment, because Bellini's refusal was at variance with a state-
ment he had made to French on the Saturday before ; French
had no recollection of having heard on the day of probate
in the courtroom that the will was a forgery; subsequently
he heard some rumors to that effect and saw something in
the newspapers to that effect; he heard the witness Antonio
Bellini testify on that occasion of the hearing in this court
on February 13, 1888, and believed the official report of the
testimony which was read to him to be correct. The counsel for
contestants animadverted strongly upon the circumstances
connected with the execution of the bond of the special ad-
ministrator, and referred to the testimony of Mr. Jellison,
one of the sureties, as to the visit of Mr. Burtis and Mr.
French to his place of business on the morning that the bond
was signed, and the counsel also called attention to Mr. Bur-
170 Coffey's Probate Decisions, Vol. 5.
tis' evidence as to his visit to the Safe Deposit Company's
office, and his first statement that he visited that office at
2 o'clock upon that day, which statement corresponded with
the memorandum made by Mr. Kowalsky from information
received by him from Mr. Niss, clerk at the safe deposit of-
fice (Contestant's Exhibit R-44 "Jan. 21, '88, Burtis 2 P.
M."). Burtis started in to tell the truth about this visit,
according to the theory of counsel for contestant, but he
afterward varied his statement and contradicted himself over
and over again.
TWO WITNESSES COMPARED.
Counsel for contestant compared Burtis' statements with the
testimony of Rev. Mr. Worcester in relation to the same matter.
Mr. Worcester, said the counsel, stands head and shoulders over
any witness here produced ; no man can question his veracity ;
if he have any fault it is that of underestimating the force of
the fact testified to by himself ; there can be no doubt, accord-
ing to the argument of counsel for contestant, that the visit of
Burtis was made at 2 o'clock, as he testified at first. The testi-
mony of Burtis is not trustworthy as a whole ; it is a mass of
contradictions; the insertion of the "Short Memorandum" in
the safe deposit box is claimed to have been effected through
his agency; as soon as this paper was discovered they asked
each other, "Who is Mrs. Sara B. Smith?" They all re-
sponded each to the other that they had never known nor
heard of her; Mr. Worcester did not, neither did Mr. French,
nor Mr. Burtis, but how was this professed ignorance of Bur-
tis and French reconcilable with the finding of the "Altered
Will," Exhibit 3, in the drawer of decedent when they were
looking over his papers? Burtis is the solitary exception of
the old pupils of the professor who had never heard of Mrs.
Sara Barker Smith, but she confessed that on one occasion
she had heard Dama mention the name of Burtis at the time
the professor gave her the ivory boat. Damn's last visit to
the safe deposit was May 20, 1887; this was before he went
cast. The last date of a visit before the date of the alleged
Will (May 8, L887) was May 3, 1887. Between May 3 and
.May 20, 1887, there is no record of a visit to the Safe De-
posit Company. The "Long Memorandum" is dated Novem-
Estate of Dama. 171
ber 1, 1885, and that is the date of the "Altered Will." The
counsel for contestant contends that this goes to show that
the forger intended to have these two go together to bolster
up each other; so the alleged Will and the "Short Memo-
randum" were dated the same day and intended by the forger
to support each other; this was doubtless the design of the
forger. Counsel asks the court to read and compare the tes-
timony of Mrs. Sara Barker Smith at the original probate
of the Will and upon this contest. At the probate she testi-
fied that she did not see what was on the envelope inclosed
in the other marked "Private Paper," and yet here, only a
short time prior to the submission of the case, she swore that
she did know what was on it. Counsel for contestant claims
that this is a most material variance. The words "Private
Paper" is an emanation of her own; it is not an expression
of Dama; it was her peculiar phrase; she testified that she
gave the expression to him; it is by these little things that
forgeries are detected; it is such "trifles light as air" that
aid in the detection of crime and contribute to the conviction
of the criminal. (See Article "Forgery as a Fine Art," San
Francisco "Law Journal," Wednesday, January 6, 1892.)
To show that everything was not straight, as it should be,
counsel calls attention further to the testimony of Burtis.
(See page 108, official reporter's transcript of testimony con-
cerning the letter dated at San Jose, February 4, 1888, to
Benjamin Randall from O. A. Hale, the brother in law of
Burtis.) What prompted Mr. Hale "in the interest of jus-
tice" to write to Benjamin Randall? Why was this letter
written, if there were nothing sinuous in the conduct of these
persons and nothing crooked in the circumstances of the case?
Was the conscience of Burtis beginning to smite him, or was
he growing weak-kneed because of his connection with this
crime? Why otherwise inspire such a letter? Reverting to
the circumstances and incidents connected with
THE FUNERAL ARRANGEMENTS FOR DAMA.
the counsel considered the embalming especially significant, the
extraordinary desire for unusual embalming methods, the em-
ployment of Dr. Kenyon to do work ordinarily and efficiently
done by undertakers at a smaller cost, and he asks, What was
172 Coffey's Probate Decisions, Vol. u.
the reason for this precaution, and particularity, and eagerness
even before the certificate of death was obtained? Counsel re-
turns for a moment to regard the behavior of Mrs. Johnson, the
nurse, her curious demeanor, and her imploration to Miss Belle
Harris for forgiveness, her shedding tears, and her dolorous de-
portment generally as indicative of a guilty knowledge that
would haunt her to her dying day. Where did Mrs. Johnson
come from? At whose instance did she come upon the scene?
Through Mrs. Helen Cushman, the lifelong and warm friend
of Mrs. Sara Barker Smith. And Dr. Tisdale comes in, like-
wise as the others, introduced on the commendation of Mrs.
Cushman.
DOCTOR TISDALE 's TESTIMONY.
Thomas Price Tisdale is a physician by profession who
has practiced over thirty-five years — for over five years
in Alameda; he knew Luigi Dama and attended him in 1887
at 317 Mason street, on December 25. 1887, and January 1,
8, and 15, 1888; he has a son practicing medicine with him
as partner, Dr. Charles L. Tisdale; Dama was suffering with
general dropsy complicated with heart disease, and as in all
such cases his kidneys sympathized ; Dama asked Dr. Tisdale
to tap him, and the doctor told Dama that it would not bene-
fit him and it might hasten his death ; the doctor asked Dama
upon the third visit if he had settled his affairs, and Dama
said he had made a Will and placed it in the hands of Mrs.
Sara Barker Smith, in whose favor it was made, and that he
left a memorandum and other papers concerning it in the
safe deposit box; Dama said that Mrs. Smith had been very
kind to him, and in fact if it were not for her he did not
know what he should do, as she had cooked his food and at-
tended to him, and he felt grateful to her. The doctor had
more conversation with Dama ; felt interested in him as Dama
was very intelligent ; he seemed to understand the medical
terms, and the doctor conversed with Dama about his gen-
eral condition. Dr. Tisdale testified that at the time of giv-
ing his testimony he was about sixty years old; a married
man with four children; he had made a little memorandum
from his books, knowing that he was to come over here to
San Francisco to testify, to give the exact dates; his first
visit to Dama was on December 25, 1887, his last one was
Estate of Dama. 173
on January 15, 1888; he was not then practicing in San
Francisco, but in Alameda ; the doctor prescribed for Dama
but performed no operation upon him; in prescribing the
doctor asked Dama to whom he was to give his directions
in reference to the medicine and Dama said, "Give them to
me; there is nobody else to take them; I have no family;
there is nobody in this house but me." On the last visit of
Dr. Tisdale he saw a housekeeper or nurse there; he told
Dama what he thought of his condition ; he said to him upon
his first visit that while he was not sure he could do him
any good he would try to and hoped that he might; on the
next visit the doctor said to Dama, "Professor, you are no
better, and I am afraid you are not going to be any better;
you don't seem to yield to treatment"; the doctor found
Dama an unusually intelligent gentleman and understand-
ing technical terms, medical terms, so the doctor became in-
terested in him and talked with him quite a good deal. Upon
the third visit the doctor asked him if he had made any
disposition of his business, if he had settled his business as
a man would who might not recover; Dama told the doctor
he had made a Will; the doctor then said, "Where is your
Will?" Dama answered, "It is in the hands of Mrs. Smith,
in whose favor it is made"; that was on January 8, 1888,
on his third visit to Dama. Dama said then that he had put
all his papers in the safe deposit accompanied by a memo-
randum of all his business and a Will. Dama then spoke
of the kindness of Mrs. Smith to him. Tisdale had no social
relations with the deceased Dama; never knew him until he
was called in to see him professionally; knew him only in
that capacity. Dr. Tisdale testified upon cross-examination
that he was born in Norfolk, Simcoe county, Upper Canada,
June 30, 1830; his father was a farmer and lumber dealer.
Tisdale was about twenty-five years old when he permanently
left there, but he returned from time to time; he did not
remember when he began going to school; he went to Ober-
lin College. Ohio, when he was fourteen years old, about the
year 1845; he was there four academic years; afterward he
traveled for some time with Dr. Dio Lewis, the celebrated
physiculturist, who was delivering lectures on physiology and
anatomy, illustrated by the use of papier niache manikins.
174 Coffey's Probate Decisions, Vol. 5.
Tisdale used to take tickets and assist him that way. He also
studied medicine in the Western College, Cleveland, Ohio,
and graduated when he was about twenty-eight years old,
and afterward practiced at different places in the United
States and in Canada ; he came to California fourteen years
ago ; arrived first at Sacramento, stayed there one day and
came to Oakland ; after staying there six months went to the
Sandwich Islands. Dr. Tisdale could not remember when he
had last seen Mrs. Cushman prior to testifying (March 9,
1891) ; he had not seen her in some time, could not approxi-
mate the time; had not seen her recently, for he had no cause
to see her ; she lives probably four blocks from his house ; she
is friendly with his family; the doctor had never known her
to visit his wife; his son, Dr. Charles L. Tisdale, is married;
he lives in his own house in Alameda and has an office hour
in the senior doctor's house in the morning. To the best
of the senior Dr. Tisdale 's remembrance he first met Mrs.
Sara B. Smith at Professor Dama's house when she was visit-
ing there; he met her there but did not think he was intro-
duced by anyone. Dr. Tisdale moved to Alameda on May
1, 1886 ; he prescribed for Dama cannabis indica, Indian
hemp, prepared by himself, and he gave it to the patient
on the last occasion of his visit to him ; it was probably the
usual dose in such cases ; the doctor administered to Dama
the usual remedies in such cases as his; he charged from five
to eight dollars per visit in this case and sent the bill to
Dama before his death ; the doctor did not remember what he
said to Mrs. Smith or she to him on his first seeing her in
Professor Dama's house; he thinks he saw her on the second
visit ; met her in the hall but could not remember the par-
ticulars of her personal appearance.
DAMA IN A CRITICAL CONDITION.
Dr. Tisdale told Professor Dama upon his first visit that he
whs in ;i critical condition and that he did not know whether he
could help him, but he would try; the doctor did not say any-
thing to Dama aboul making a Will; upon the second visit the
doctor told Dama in substance that he had not improved any;
upon the first visit the doctor saw Mrs. Smith in the hall after
he got through; upon the second visit the same way; cannot
Estate of Dama. 175
remember what she said to him or he to her; upon the third
visit the doctor said, after declining to tap Dama, to perform
the operation of parasentesis abdominalis, "Professor, I hope
you will get well, but I fear you will not ; it is wise for every
man to have his business settled ; have you got your business
settled?" Dama replied, "I have made my Will; it is in
the hands of Mrs. Smith, in whose favor it is made, and a
memorandum of all my business is in the safe deposit," and
Dama went on to say that she had been very kind to him, in
fact he did not know what he would have done for food ex-
cept for her. Dama said "a memorandum of his Will and
all his business" was in the safe deposit; "she had not only
cooked his food, but had sent it and brought it to him"; that
is all that the doctor remembered; the doctor asked Dama
nothing further about his business; the fourth and last visit
made by the doctor to Dama was on January 15, 1888; he
was no better — in fact worse ; the doctor told Dama as much
in substance; Dama wanted the doctor to tap him but he
refused, giving him the same reasons as before, that it was
not wise for him to do so ; the doctor and Dama discussed it
pro and con, and the doctor declined as already stated, and
made his prescription and went away. Mr. French paid
the doctor his bill. Contestant's counsel, Kelly, says that
it is utterly improbable that any such conversation oc-
curred between the doctor and the decedent Dama as this
physician testifies; and the zeal with which Tisdale vouch-
safed this information was enough to condemn it as untruth-
ful. The counsel commented severely on the unprofessional
manner in which the doctor testified as to knowledge acquired
only in his office and character as a physician; and alluded
to the doctor's marvelous feat of memory in recalling these
details that occurred years ago, and yet failing to recollect
matters which took place in his testimony only a few days
before. Counsel contended that the conversation Tisdale
testified to never took place, but was a scheme concocted
to bolster up the case of respondent, and the counsel asks.
Why did Professor Dama confide solely in Dr. Tisdale the
making of the Will and yet never have alluded to such a fact
to any of his intimate friends, not one of whom was made the
recipient of his confidence, and yet so important a revelation
176 Coffey's Probate Decisions, Vol. 5.
was imparted to this Dr. Tisdale, an acquaintance of a few
weeks' duration, called in only as a doctor and in no sense a
friend, his employment purely professional and no social re-
lations existing between them?
*»
THE CONDUCT OF DR. TISDALE,
according to the counsel, is explicable only on the theory that
he had his part to play in this conspiracy and combination
and he was anxious to fulfill it; his remark to a young man
in the apartment adjoining the courtroom, while he was ex-
cluded from the court during the argument on the motion to
strike out his testimony, that it made no difference anyhow,
even if the motion prevailed, that his evidence was before the
court and would have its effect, illustrates the character of
the man.
Reverting to the testimony of Mrs. Sara Barker Smith
about the incident of Dama giving her the Will, coun-
sel declares that her statement is inherently improbable,
her remarks, attributed by her to Dama, about Waterhouse
having the key of the safe deposit box could not have been
made, as they were not in accordance with the fact as has
been proved in this case. Counsel claims that Mrs. Smith is
contradicted as to the whereabouts of the Will and its having
been continuously kept among her laces, never having been
taken out, by her own statements and by the testimony of
her husband, who said she told him it was kept between the
mattresses. Julius Paul Smith, the husband of Sara Barker
Smith, the respondent in this case, had been also a pupil of
the deceased Professor Luigi Dama, with whom he became
acquainted in 1884 at Mr. Smith's house on Jackson street
in the summer of that year; Smith was introduced to Dama
at his house by his wife; the object of the professor's coming
was to let Smith become familiar with his method and to
illustrate it, and Smith began to take instructions shortly
after and continued for a few months; the last time that
Smith was at Professor Dama's house was in that .summer
he attended Dama's funeral, the second Sunday after his
death, aboul eighl days after his death, with his wife; Smith
Followed the procession as far as the ferry, and after the
remains were sent by express east, returned home; he first
Estate op Dama. 177
learned of Dama's death on January 21, 1888, at his office
in the Nevada block; it was Saturday, the 21st of January,
1888, that he learned of it from his wife, who called at his
office and informed him ; Smith became acquainted with Mr.
French on the succeeding day, about 1 or 2 o'clock, Sunday,
January 22, 1888 ; a gentleman named Burtis was with him —
they came together to his house ; there were present these
gentlemen, his wife and himself; it was between 12 and 2
o'clock; they remained about one hour; Mr. French intro-
duced himself as the Commander of the Commandery to
which Dama belonged, French then introduced Burtis as
special administrator of the estate of Dama; it was Mr.
French who stated that they had learned from an examina-
tion of the papers at the safe deposit that his wife was the
custodian of the Will of deceased; she then left the room,
was absent about a minute and returned with the Will
wrapped up in wrapping paper, tied with a cord, saying she
was glad to surrender it ; then Burtis cut the cord and found
a package within it and Mr. French told him to cut it; he
did so and found within it another envelope marked "Will
and Testament"; Burtis cut it open as he had done the other
and there was therein disclosed the Will which Burtis pro-
ceeded to read; the first envelope was indorsed in ink
"Private Paper," lengthwise, according to the recollection of
Smith; the envelope was cut lengthwise, he thinks, but he
might be mistaken; Smith's impression was that, the paper
in the white envelope contained about four pages or two
sheets ; he thinks the writing terminated on the fourth page ;
that was a mere matter of detail that did not interest him,
but his memory was that it was foolscap ; it seemed now to
him as though the signatures of the witnesses were on the
fifth page, and he recognized and identified the alleged Will
as the paper found within the envelope; Burtis read it first
aloud and then French read it also aloud; then French or
Burtis took possession of it ; French said he had a box at the
safe deposit in which there were several Wills and he could
put it in there; Smith appealed to his wife that that might
be done until it could be brought out to the court for probate,
and he never saw it in court until it came up for probate;
Smith denied that he made any such statement as was im-
Prob. Dec, Vol. V — 12
178 Coffey's Probate Decisions, Vol. 5.
puted to him in the deposition of Benjamin Randall, and said
that it was only under very earnest solicitations that he had
the interview therein adverted to; he was requested to make
a statement of all his knowledge of Luigi Dama and what he
knew about his affairs; Mr. Russ made the request, Benjamin
Randall being then and there present; Smith related to them
all the circumstances of Dama's death as he had been first
apprised of it and told them that he was sorry when he
learned of the contents of the Will; Randall said something
about "the alleged Will," that there were some suspicious
circumstances about it and that it was forged; Smith then
became indignant and irritated and arose and said that he
would not listen to what was an imputation upon him and
his wife, and he left, the interview terminated ; this interview
may have lasted fifteen or twenty minutes, possibly longer;
since that time he had not seen Benjamin Randall. Mr.
Smith recalled that it was Mrs. Helen Cushman who accom-
panied himself and wife to the funeral ceremonies at Dr.
Barrow's Church on Sunday, January 29, 1888, and he also
recalled that when at his house the professor used to spend
an hour or an hour and a half in giving instructions and im-
parting a knowledge of his method to himself and his wife.
4
WHEN MRS. SMITH TOLD HER HUSBAND ABOUT THE WILL.
His wife first told Smith that she possessed the Will on
Saturday, January 21, 1888; she came in and told him at
his office; he was at home during that week; his wife told
him that she had just come from the professor's residence
where she learned of his death ; if she had any other informa-
tion she did not impart it to him; he was in the house with
her the night before and every other night that week; she
told him she had just learned of the professor's death and
came to tell him about it; Smith was in his office when she
came; he thought she was a little discomposed in manner; she
did not shed any tears so far as he could recall; his wife in-
formed him that she had the last Will of Dama and asked him
what she should do; he said to her that he supposed the
proper party would call for it; Smith remembers reading in
the newspaper reports of the evidence given in this case that
Miss Belle Harris called at his house on that Saturday morn-
Estate of Dama. • 179
ing; when his wife called at his office she remained but three
or four minutes ; she did not take a seat but went away when
he told her that he could not see what she had to do except
to wait until the Will was called for; she told him that when
the professor gave the paper to her to keep she expressed
surprise and asked why he did not deposit it in his safe
deposit box, but the professor told her that there was another
person who had a key to the box and it was just as well that
it should be in her custody; she told her husband that Dama
gave it to her just prior to his going to Boston the last time ;
she put it between two mattresses of her bed; Smith saw it
on the morning she produced it and showed it to French and
Burtis ; she then said she had kept it there between the mat-
tresses; it was about May, 1887, that she obtained custody
of the document, and from that time until January 21, 1888,
she never disclosed her possession of the "Will to her husband ;
he should not have favored her keeping custody of that Will
had he known it ; the reason of her not disclosing her custody
of the Will had never been the subject of discussion between
Smith and his wife, and they did not discuss the subject on
Saturday evening; on the next morning, Sunday, they had a
conversation about the matter ; she told how she came into .
possession of it, how she had declined to accept the custody
and Dama insisted and then she took it — he said he thought
it would be safer in her hands ; she said that she did not want
the responsibility and it resulted in her retaining the package ;
the name of the party who he said had the key of the box
was Columbus Waterhouse; Smith would not be positive that
his wife told him that that was the name, but that was his
impression, and he had never understood since as a fact that
the Rev. Joseph Worcester was the gentleman who had the"
box key ; his wife told Smith that Dama said that if she went
east, as she contemplated, to take the package with her; this
conversation occurred on Sunday morning, not on Saturday
at his office; Smith recalled that he said at the time of the
conversation between them and French and Burtis that he
did not want any publicity about any bequest of that kind,
and that French said that it would be more seemly not to
have the Will probated until after the funeral ; French spoke
of the reasons why special letters of administration had been
180 Coffey's Probate Decisions, Vol. 5.
obtained because in the absence of any known relatives the
Commandery took charge ; Smith went east in the early part of
May, 1888, after the Will was probated in San Francisco ; when
he went to Boston he called upon the acting probate officer
and presented his papers of authorization from the executrix
here, his wife, and made a demand on the Safe Deposit Com-
pany for effects, but did not succeed in obtaining them ;
Smith met Mr. Russ in his office in Boston ; he went there
at the instance of Mr. Tisdale; Russ desired him to make him-
self known and give references and show who he was, but
Smith declined to acquiesce (see page 35, judge's manu-
script notes deposition of Augustus Russ, attorney at law) ;
his attorney in Boston, Joseph R. Smith, advised him to do
so ; he was employed by him in that matter only ; Mr. Tisdale
and his attorney, Mr. Smith, advised him that it would be
policy to have an interview with Randall and his attorney,
Russ ; Smith went there and made a statement as has been
alreadj r narrated; it was a foolish interview in his opinion,
and has been misrepresented; Mr. Smith had always been
very much interested in the cultivation of his wife's voice;
the lessons were for the cultivation of her voice, for her own
delectation and the pleasure of her friends and the benefit
of her health ; he did not recall that he ever paid directly for
her lessons, but he was cognizant of the fact that she paid,
from her statements, but he did not know how much she
paid ; all he knew -was that he gave her money to pay and
she told him that she did pay; the period of her taking lessons
from Dama covered an interim of four years to a day.
Smith's wife's maiden name was Sara Barker; she was tem-
porarily living with her mother, on a visit, when he married
her; she had resided with her sister in Janesville, Wisconsin,
who was in prosperous circumstances. Smith conld not recall
the material on which the Will was drawn or written, he
hail only seen it on two occasions; the matter of the paper
'•nt hut lit fh' figure with him; it was the characteristic hand-
writing ami the signatures; ho did not recall the scroll or
rnhric under the words "Private Paper"; Smith was
thoroughly familiar with that writing and said that there
was an individuality aboul it that would make it very diffi-
cult to imitate; it impressed him that way. Smith declared
Estate of Dama. 181
himself decidedly interested in the result of this trial with
respect to the aspersions and defamation, but with regard to
the monetary consideration, no ; he repeatedly said that he
looked at it as a mistake that Dama should have made that
bequest. Smith denied that he had advanced any money
directly or indirectly for the witness Godard, but he had
advanced money, but did not know to what purpose it was
applied ; he had had conversations with some of the witnesses
connected with the case; he had spoken to Mr. William T.
Cummins in the corridor of the courtroom but not about the
case, only about the peculiarities of Dama ; Smith knew Mrs.
Helen Cushman in Janesville, Wisconsin ; her maiden name
was Wilson ; she had been twice married, and was a warm
personal friend of his wife.
JULIUS PAUL SMITH'S RECORD.
Smith was married to his wife in 1870 in Edinboro', Penn-
sylvania ; he went to college when he was thirteen years of age,
remained there at Milton College until he was seventeen or
eighteen, when, during vacation, he volunteered in the Union
army and served for three years; he was afterward engaged in
merchandising in the south and elsewhere until he came to the
state of Nevada in 1873 ; he went to Europe in the autumn of
1881, remained there until near the summer of 1883 ; was in
England on two occasions, but not long on either ; the first time
late in the autumn of 1881, when he remained about a week ;
the second time, prior to his return to this country, possibly
for a month, as he recalls. Smith brought his account books
into court containing the Dama account in this case, and it
appeared therefrom that his disbursements, exclusive of coun-
sel fees in the case, had been up to this date (April 1, 1891)
$1,350, of which $1,000 were paid, as he was informed, for
expert witnesses; Gumpel he had known for years; he knew
Mrs. Johnson only by sight; he had seen her in the court-
room ; he heard from his wife that Mrs. Johnson had visited
their house; in regard to what his wife said about placing
the package containing the Will between the two mattresses,
that was merely temporary — the usual place was among her
laces in her trunk.
1S2 Coffey's Probate Decisions, Vol. 5.
Counsel for contestant contended that the testimony
of Miss Belle Harris is truthful, and, in contrast to that
of Mrs. Smith, must have favorably impressed the court,
that Miss Harris was a disinterested witness, and her
statements were made in a manner that inspired confidence
and compelled credence; her testimony should be noticed
with regard to the demeanor of Mrs. Smith when the latter
called at the professor's house after his death; and he also
directed the court's attention to the transaction at the house
of Mrs. Smith when the attorney French and the Special
Administrator Burtis called on Sunday after Dama's death,
her singular conduct in delivering up the Will and taking no
receipt nor any copy nor doing anything else to preserve
inviolate the document; this he considered a curious mode
of dealing with the document, if Mrs. Smith's testimony be
true. In speaking of the meeting that took place at French's
office the counsel said it had the appearance of preconcert,
and he glanced at the testimony of Burtis concerning the way
in which that meeting was brought about. This counsel
claimed that Burtis and French had a thorough under-
standing before they called up the convocation of the mem-
bers of the Commandery as to what they should do; their
plan was already perfected; they had no doubt that Mr. F.
W. Sumner and Mr. A. &. Booth would decline to act either
as administrator or attorney, and French and Burtis were
then prepared to execute their project; this, in the opinion
of the counsel, is clearly the way in which they co-operated.
DAM A PREJUDICED AGAINST OLOGRAPHIC WILLS.
There was another reason, in the opinion of counsel,
to show that Professor Dama never made this Will; Dama
had a prejudice against olographic Wills, because of the
failure, on account of the omission of a date, to secure the
probate of his wife's Will, and the consequent deprivation
of what, he was entitled to under that instrument. It does
not seem probable or possible to counsel for contestant, in
view of this, that Dama would have adopted such a form of
Estate op Dama. 183
testament for himself. And again, consider his change of
sentiment toward the Randalls after his visit to the east,
according to the testimony of Dorn. It is necessary to make
a brief reference to the testimony of Henri Wigger, the
notary, a witness for respondent, who drew up a Will for
Dama, a fragment of which is here (Respondent's Exhibit
78), written by Wigger in 1S82 in his office. Wigger testified
that he knew Luigi Dama, and the paper marked Respond-
ent's Exhibit 78 was written by him in 1882 for Dama in
his office at 240 Montgomery street; that is a part of the Will
drawn by him for Dama. Dama was in a great hurry and
John C. Hall, the attorney, told Wigger to draw up a Will
for the old gentleman. Mr. Dama gave him the ideas for the
Will and he made the rough draft which is the Exhibit 78,
then he made a clean copy of it. Mr. Columbus Waterhouse
came with Dama and when Waterhouse left Wigger was alone
with Dama. Another fact of vital importance, in the estima-
tion of this counsel, was the disappearance of the paper which
Mr. D. S. Dorn testified he saw in the courtroom and which
was drawn by him as a Will for the decedent Dama. Counsel
concedes that there is no doubt that there was a Will drawn
or executed by Dama. This was in May, 1887, but that Will
so executed and attested was a different instrument from the
one here in question.
CHARACTERISTICS OF THIS WILL.
This alleged Will is clothed in all the conceivable habiliments
of crime ; it bears upon its face the stamp of falsehood and the
impress of fraud and all the indicia of forgery, and those
who forged it, who conceived, concocted, and consummated
this crime, were in possession of the Will actually executed in
May, 1887, attested in presence of Dellasanta, who did not
sign as a subscribing witness, as Dama told him it was not
necessary, as three were enough, Mathieu, Godard. and Bellini
having already attested, and the conspirators and forgers
used that document as a pattern in the execution of their
pernicious purpose.
184 Coffey's Probate Decisions, Vol. 5.
an alleged conspiracy.
Counsel for contestant contended that the evidence would
show that the statements of Mr. French were not to be relied
upon ; his own confrere. Mr. Burtis, unconsciously revealed
in his testimony that there was a gigantic conspiracy in
this case of which he and French were the main manipulators.
French and Burtis had a thorough understanding as to
what should be done about taking possession of the prop-
erty of decedent Dama before they called up Sumner and
Booth for the star chamber convocation at French's office;
there is every element of preconcert here; French is
contradicted by his colleague in this conspiracy, Burtis, and
he is also contradicted flatly by the witness Jellison ; he is
also contradicted by Miss Belle Harris in regard to what she
told of his having said about magnifying a claim of a nurse
from $200 to $2,000 against an estate. There is another fact
to which William T. Cummins testified, that the employment
of French was caused by the fear that he would use some
papers which he possessed ; there was no need of another at-
torney 's service, for Adley Cummins was competent and suffi-
cient, but Adley told William T. Cummins that Mrs. Smith
was afraid that if she did not employ French the latter would
use to her damage certain papers that he held in terrorem
over her. What were those papers? Wherein could they
have imperiled the interests of Mrs. Sara Barker Smith.'
This is another evidence, asserts this counsel, that there was
here an outrageous conspiracy and combination to secure
possession of this property. This testimony came from one
of the respondent's own witnesses, for William T. Cummins
was a witness for the respondent's side and a very zealous
witness, although he said lie was not a partisan; he was a
witness impeached by his own wife, a lady who "['.me upon
the stand at what must have been so great a sacrifice of feel-
in g in response to a sense of duty.
( 'ounsel also dealt with shorthand reporter Thomas K. Knox,
who was so completely broken up on <■ ixamination, and was
compelled to confess that he had, when he first heard of the
Will, expressed incredulity because of the absurdity of its
"perfectly ridiculous" provisions with resped lo the develop-
ment of Mrs. Smith's vocal O] , and counsel also reverted
Estate of Dama. 185
to the testimony of the respondent, Mrs. Sara Barker Smith.
to expose its inherent improbability, inconsistencies, incon-
gruities, contrarieties and contradictions. Counsel, in summing
up the case, adverted to the promise in his opening statement
that he would prove .that this alleged Will was false, forged and
fraudulent, and said that the question for the court to consider
was whether he had kept his promise, and if the answer be in
the affirmative, he should expect a judgment in favor of the
contestant, and if in the negative, he would submit with respect
to an adverse decision, and his colleague and himself would try
to reflect and study and learn wherein they had been blinded
for three years and a half.
He said that before coming into the case he took it on pro-
bation for more than thirty days until he was fully convinced
of all the facts alleged, and he realized the importance of the
issue and the
SERIOUSNESS OF THE ACCUSATIONS
and implications upon the integrity of persons of hitherto high
standing in social and professional life, and no consideration of
self-interest moved him to action — nothing but the conviction
that here there was a great crime committed which it was his
duty to disclose to the court and to wrest from its perpetrators
the fruits of their act and to restore to the rightful heirs their
estate. The case made by the evidence, in his opinion, more
than justified the promise, and the defense attempted fully sub-
stantiated by its weakness the incapacity of respondent to an-
swer the allegations and to account for the circumstances so in-
criminatory which surrounded the entire transaction from its
inception to the time and to the termination of this trial.
Truth is never a coward; it can be told at all times, but a
falsehood can never be told with safety, and that is the
trouble, counsel claimed, with the excuse given by Mr.
French, the Eminent Commander, for not having communi-
cated the facts in his possession concerning this Will to the
relatives of decedent; his conduct and that of those con-
cerned with him at the time immediately subsequent to the
death of Dama savor strongly of suspicion, and afford grouud
for inference of iniquity and infamy and moral and legal
turpitude in the transaction. The circumstances all tend to
the same conclusion, and lead as by demonstration to the de-
186 Coffey's Probate Decisions, Vol. 5.
duction that crime was committed. Who was among the first
to suggest sinister methods in this matter? William T. Cum-
mins, respondent's pwn witness, who stated that his deceased
brother. Adley H. Cummins, had said that the Smiths were
forced to employ the attorney French because they were in fear
of him and that he had them in his power, and Adley Cum-
mins was finally taken in as an attorney of record to silence
him in his speech consequent on chagrin at first being set
aside for French, but the Cumminses were not the only ones
to set an alarm. The nurse, Mrs. Fannie Johnson, and Burtis
also struck the alarm, as is shown by the letter of 0. A. Hale
to the Boston relative, Benjamin Randall. The conduct of
the nurse, and the declaration of her counsel, Castelhun,
which was excluded under objection of professional privilege,
was significant. Why should respondent's attorneys have
shut out that conversation, if they were conscious of their
client's innocence? What have they to fear, if innocent?
Why close the door to truth by the plea of privilege, if they
had nothing to fear from disclosure? The same counsel ad-
verted to the haste on the part of the conspirators, as he
called them, to obtain possession of the property of decedent,
the rush for special letters. It was a part of their scheme to
possess themselves of Dama's papers and effects, so that they
could cull out what they wanted and dispose of what they
did not care to retain to serve their purpose; he called par-
ticular attention to the statement of French in his letter to
Rev. Joseph Worcester that the friends of Mr. Dama desired
a Templar funeral and that the Rev. Mr. Worcester would
not be expected to officiate. (Contestant's Exhibit H-34,
Letter of F. J. French to Joseph Worcester, January 26,
1888.) Who were the friends that desired a Templar
funeral? Was it Mr. Waterhouse? No; the Knoxes, or any
of those who had been the friends or familiars of the de-
eeased I Not one of them made such a request or was called
into counsel. The counsel claims that this was a part of the
conspiracy to gain possession, not only of Damn's property,
hut of his very remains. The calling in of the Pasl Eminent
Commanders at the office of Mr. French was a part of the
plan of the perpetrators of this crime, a contrivance by the
conspirators to connect with their conduct the names of re-
Bpectable men like P. W. Sumner and A. G. Booth, men of
Estate of Dama. 187
irreproachable character in the community and exalted rank
in Masonry, so by association with them the conspirators
French and Burtis could claim credit for honesty and up-
rightness of motive ; but it was a shallow scheme, as counsel
claims to have shown, and too transparent to withstand in-
telligent scrutiny; their plot was too patent to be aided by
such device. Mr. Kowalsky criticised Mr. French's conduct
particularly. Mr. French is an attorney, was once the attor-
ney for the public administrator, and knew very well what
was his duty in regard to the property and effects of the
decedent in the absence of kin resident here. French had
no excuse for honestly evading this duty, but to carry out this
scheme, this counsel asserted that it was essential that
French obtain and retain charge of the custody of the effects
of the deceased. If French had been consistent as a lawyer
and as an honest man he would have no care for criticism
nor have need to shun slander, which never harms an inno-
cent man. The counsel for contestant asked, "Why was
French in such haste to obtain special letters? Was it a mere
mistake of judgment? Did he not know that if the Rev.
Joseph Worcester were in time advised of his duty as one
named as executor in a Will he would, if he acted as a
sensible man, apply for special letters? Was it a mere mis-
take again for Mr. French to act as attorney for the special
administrator? No, answers this counsel, these were not
mistakes of judgment; they were acts of design in con-
formity with the conspiracy already concocted. Every act
of French shows deliberation and design. Why was he lurk-
ing all day, that Saturday, a short business day, around the
New City Hall? Why such haste to reach the safe deposit
office, to which he and Burtis repaired at 2 o'clock? Coun-
sel claims that the visit of Burtis to the safe deposit office
at 2 o'clock in the afternoon of Saturday, 21st of January,
1888, is clearly established, and says that if there be a fact
in this case proved, it is that Burtis was there at that very
hour, and in this connection the counsel criticised the testi-
mony of Curtis, the manager of the safe deposit, and said
that the explanation that the first memorandum made of
Burtis' visit at 2 o'clock and given to him, the counsel, was
the result of a mistake made by Curtis in "calling off" to
the bookkeeper, is absurd ; and the counsel says that Manager
1S8 Coffey's Probate Decisions, Vol. 5.
Curtis, in furtherance of this "accidental" error, had to
make another "mistake." and had to have a seal on the safe
deposit box. and for that purpose information should have
been received of the owner Dama"s death, and therefore they
had to make it appear that Eev. Mr. Worcester called early
on that Saturday morning and talked to old ex-Chief Whitney,
then the nominal superintendent, not to Curtis; but Worces-
ter's testimony is that he never leaves his home at that time
in the morning, and that he has no recollection of visiting
the safe deposit vaults as testified to by Curtis, and that it
is entirely unlikely that he did so visit. The fact and truth
is, claims the counsel, that Curtis' first information came
from Burtis at the 2 o'clock visit of the latter to the
safe deposit vaults, and then when the conspirators had their
plan perfected they notified the Rev. Mr. Worcester to go
down with them to see if there was a "bird in the box." and
so they took Worcester down and took him in to see what
they already knew was there.
THE VISIT TO THE SAFE DEPOSrT.
This is a severe reflection upon Mr. Curtis, the superin-
tendent of the Safe Deposit Company, who has been con-
nected with that concern for over ten years, and who in
his testimony described the modus operandi of obtaining
access to the boxes and vaults of the Safe Deposit Company,
and produced the books of record of which he had con-
trol, including the original agreement (May 5, 1885) with
Luitri Dama at the time when ex-Chief Whitney was super-
intendent and Curtis assistant. These books show that Dama
visited safe 1638 on May 3, 1887, at 9:02 A. M., and on May
20, L887, at 8:45 A. M., and that Burtis visited the same safe
21, 1888, at 5 P. M. Curtis said that Burtis called
the day after Dama died. Mr. Worcester called the next
ning after Dama died between 8:30 and 9 o'clock, just
1 >in<_r oil watch; Worcester came there for a
ill purpose according to the information received by
Curtis. When Burtis came he produced a certified eopy of
the letters of administration as special administrator; Mr.
French and Mr. Worcester were with him. When the}- li
in the safe deposit of the death of a box-holder they put a
seal on his box, and that seal remains until they receive an
Estate of Dama. 189
order from the probate court. It was just about getting dusk
when French, Burtis and "Worcester called ; no one else called
for that box that day to his knowledge. Curtis recollected
when Mr. Kowalsky brought an order to him from the court
(Contestant's Exhibit T-46) to furnish information, and the
paper (Contestant's Exhibit Q-43) was furnished by the
safe deposit bookkeeper. (Mem. on paper: May 3-87 Dama
9:02 A. M.; Jan. 21-88, Burtis 2:00 P. M. ; Jan. 21-88,
Burtis 5 P. M.; May 20-87, Dama 8:46 A. M.) Curtis did
not remember who was with Mr. Kowalsky at the time
he brought the order; it was about a week after that paper
(Contestant's Exhibit Q-43) was sent to the counsel that
Curtis saw him ; counsel was passing by the office and Curtis
saw him and called him down into the office and told him
that the bookkeeper had made a mistake in the memorandum
in calling off the numbers. Curtis said that he was calling
and called off the wrong number, he was at the time doing
two men's work in opening safes, entering in his own book,
and calling off to the bookkeeper, and thus the mistake oc-
curred. Curtis did not see the memorandum when it went
out and so did not discover the error in time to correct it
before they received it. The witness Curtis was examined
closely with reference to alterations in his record books of
visits to the safe. Mr. Whitney was not present when the
gentlemen, Rev. Mr. Worcester, Mr. French, and Mr. Burtis,
called on the 21st of January, 1888. Curtis was on watch all
day that day except about two hours in the morning; all the
day except from about 9 o 'clock until 10 :35 A. M. The wit-
ness Niss, the safe deposit bookkeeper, testified that the entry
on Contestant's Exhibit Q — 43 was an error.
THE WITNESS BURTIS CRITICISED.
The counsel desired the court to carefully examine the testi-
mony of Burtis and to consider his demeanor on the witness-
stand ; the counsel said that the appearance and demeanor of
the witness Burtis was as important as his words — nay, more,
for words are often used to conceal thoughts, but the secret and
sensitive nerves unconsciously reveal the thoughts, and the
novice in crime vainly strives to dissemble, and the lie on his
lips is discovered in the countenance of the criminal neo-
phyte, who is unable to master his emotion or disguise his
190 Coffey's Probate Decisions, Vol. 5.
duplicity. Burtis' whole behavior as a witness, his hesitating
and halting answers, his expression and shuffling in examina-
tion, all tend to discredit his testimony. Mrs. Johnson's visit
to the store of Burtis on the day of Dama's death was a mere
subterfuge, and her storj* was false. What was it that oc-
curred in Dama's house on the day of his death to require
the manufacturing of so many fabrications? Why pile false-
hood upon falsehood, unless there was crime to conceal?
Honesty requires no prevarication to support it, but crime
and dishonesty demand to be sustained by falsehood and
equivocation. "Who were in that house on the morning of
the day of the death of Dama, that very sudden death — so
sudden that the old professor had no time to turn his
thoughts heavenward or look once more upon the picture of
that wife whom he loved so well? "Who were there? Mrs.
Fannie Johnson, nurse, Burtis, and Mrs. Sara Barker Smith ;
these three and no more. Why should these persons pre-
varicate and equivocate concerning what transpired that
morning, if there were no crime to cover? Burtis was there,
and the counsel asserts that he proceeded to rifle the
pockets of the deceased Dama immediately after his death
and to ransack the drawers and examine the effects. Con-
sider in this connection the recitals in the petition for special
letters drawn by Mr. French and subscribed by Burtis with
the denials of the latter. The petition for special letters was
written at length by Mr. F. D. Brandon, then engaged in the
office of F. J. French, and contains a recital that deceased
had a box in the safe deposit office, and this petition was
signed by Burtis, and yet he swore on the stand in this trial
that he did not know that Dama had a safe deposit box. That
due search and inquiry had been made for a Will, and that
the petitioner believed there was one in the box of the Safe
Deposit Company, is a recital in the petition for special
letters. How did Burtis obtain that information? Counsel
a that it was from his fraternal friend French, from Sara
Barker Smith, and from Fannie Johnson; these were the in-
formants of Burtis, according to the theory of contestants.
POSSIBILITY OF CRIMINAL COMBINATION.
The counsel fur the respondent claimed that it is impossible
that such a combination could have been formed or existed,
Estate of Dam a. 191
but counsel for contestant assert that there is now, as a
part of the history of juridical contests in California,
an instance of a greater combination, the Sharon case,
supported as it was in court in the very courtroom in which
this trial was in progress, at the very bar at which counsel
were standing, by numberless forged documents and papers,
by perjuries some of which were disclosed only by death-
bed confessions, and other retractions and revelations of con-
science-smitten witnesses, and counsel said that that case was
curiously coincident with this one in many particulars, which
the counsel undertook to point out. Both cases had many
points of contact, according to counsel for contestant, but as
that case is shattered into fragments, ground into dust, and is
another example of justice finally triumphant, and is a proof
of the maxim that truth is great and will ultimately prevail,
so it will be here. The conduct of French and Burtis in con-
nection with the funeral arrangements for Dama was severely
censured by counsel for contestant as contrary to Masonic
obligations. It was their duty to communicate first with the
local lodge of which the deceased was a member, the Com-
mandery being no part of Masonry proper, and the counsel
contends that this action of French and Burtis is an addi-
tional proof of their criminal complicity, and that the ear-
marks of conspiracy are present from the time of its con-
ception ; from the moment they conceived the idea the con-
spirators closed in on the decedent and made their corpora-
tion so close that no one else had opportunity of access to
him, and so they contrived to exclude everyone from viewing
his body after it was hurried to the undertaker's rooms.
TRACES OP COMBINATION AND CONSPIRACY.
They refused to Mrs. Columbus Waterhouse, herself a physi-
cian, the privilege of looking at the body during the time it
was in the rooms of the undertaker — all through are traces
of combination and conspiracy unmistakable and inefface-
able. Mrs. Amelia A. "Waterhouse testified that she was the
wife of Columbus "Waterhouse, was a doctor by profession,
and had lived with her husband in California about thirty
yv-ars and in the city of San Francisco twenty-five years be-
fore the date of her testimony, which was December 16, 1890;
she knew Professor Luigi Dama very well and her acquaint-
192 Coffey's Probate Decisions, Vol. 5.
ance began with him about the year 1880. He first lived
at O'Farrell and Powell streets; after his return from the
east he boarded opposite, and subsequently he moved to 317
Mason street about 1882, at the time her daughter married.
Dama was a very careful man, very precise; he was very
particular about his money matters. Mrs. Waterhouse saw
him the Tuesday before he died; she was there on Friday
after he died, saw there Mr. Burtis, also the nurse Mrs.
Johnson, Miss Harris, Dr. Brigham, Mr. French, and sev-
eral other gentlemen and a group of ladies. Mrs. Water-
house had a conversation with Mr. Burtis, who asked her to
come in and see the professor. Burtis said the professor
died at 10 that morning. Mrs. Waterhouse went to the un-
dertaker at the time the body was being embalmed and she
asked permission to see the body, which permission was not
granted; Halsted, on Mission street, was the undertaker; she
saw the body after it was embalmed and in the coffin. Mrs.
Waterhouse was a graduate of the Hahnemann Homeopathic
Medical College ; graduated in October, 1890. Mrs. Water-
house visited Mr. French's office the day after Mr. Dama's
death. Mr. French was out but she saw Mr. Burtis there.
and he said that Mr. French had gone to see Judge Coffey.
to procure permission to examine the safe deposit box; this
was on Saturday noon, at about 1 o'clock; she left word with
Mr. Burtis for Mr. French that Mr. Waterhouse and Mr.
Worcester were executors of the Will that she knew was
drawn up. Mrs. Waterhouse recollected that on the night
of the day of Mr. Dama's death at his house, in the presence
of Mr. French, she said in her usual tone of voice that Mr.
Dama had left a Will in which Mr. Waterhouse was named
as executor; it was on the next day that she visited Mr.
French's office; he was not in; his clerk was in the outer
off] went into the inner offiee to write a note to him;
she found there Mr. Burtis sitting behind the door; she asked
him why he did not tell her he was there. Mrs. Waterhouse
made a memorandum of what she did so that she could write
to her husband, who was then in Mexico; she kept a sort of
diary for that purpose; it was between 1 and 2 o'clock on
Saturday, January 22, 1888, in the afternoon, when she vis-
ited Mr. French's office; she remained perhaps ten or fifteen
Estate of Dama. 193
minutes in the office ; Mr. Burtis was in plain sight all the
time.
THE FUNERAL ARRANGEMENTS.
Concerning the funeral arrangements, undertaker J. L.
Halsted testified that he remembered the funeral of Luigi
Dama and the time when Burtis and French came to his
establishment about the embalming and when they sent
for Dr. Kenyon ; Halsted was engaged for a part of two
separate days; Dr. Kenyon was also engaged for the same
time in the process of embalming; no one was excluded ex-
cept one day when Mrs. Waterhouse called and Halsted told
her that the body was not then in a presentable condition;
no one gave Halsted instructions to exclude anybody; the
body of Dama remained in Halsted 's place during a week
longer, and very many persons visited the place to view the
body while it lay there; Halsted 's firm embalms bodies; Dr.
Kenyon may have embalmed other bodies there, but Halsted 's
son was the regular embalmer for the firm and is considered
a good embalmer.
William Augustus Halsted, the son of James L. Halsted, cor-
roborated his father, and said that he did not know Sara
Barker Smith and never saw her to his knowledge ; the father
was a member of the Golden Gate Commandery, but the son
was not; William A. Halsted was an embalmer and had had
very good success; thought he could have made a good job
in this case, but Mr. French put so much stress upon its be-
ing a "first-class job," and seemed to be so very particular,
that Halsted wished to shift responsibility and suggested Dr.
Curtis G. Kenyon, who was then making a specialty of em-
balming; the junior Halsted charged, according to the char-
acter of the case, from $150 to $400 for embalming. Dr.
Curtis G. Kenyon, the physician, described the operation of
embalming the deceased. Dr. Charles B. Brigham testified
that he performed an operation upon Luigi Dama to relieve
him from dropsy. Dama was far gone with Bright 's dis-
ease; it was impossible to cure him of that; he was an old
man and his heart was very weak ; he probably died of heart
failure ; there was a great deal of pus and much albumen in
the urine; this was on the 17th of January, 1888, at 317
Mason street; Dr. Brigham continued to visit Dama until he
Prob. Dec, Vol. V — 13
194 Coffey's Probate Decisions, Vol. 5.
died; Dama seemed very much pleased after the operation
and Dr. Brigham left him comfortable in his bed; Dr. Brig-
ham first saw Dama the day before he performed the opera-
tion. Dama was a feeble old man ; his pulse was intermit-
tent and feeble; he was instructed to stay quietly in bed;
when Dr. Brigham returned he saw Dama sitting up in a
chair by the fire; the doctor did not see him on Friday —
Dama was dead before he got there; in the doctor's opinion,
the result of Dama's disregard of Dr. Brigham 's directions was
that he died. So far as the conduct of the nurse, Mrs. Fannie
Johnson, in engaging the services of Dr. Brigham is concerned,
it is not blameworthy, because when Tisdale refused to tap
Dama and the latter desired another doctor, a better selection
could not have been made than the choice of Dr. Brigham, a
gentleman foremost in the ranks of his profession, entirely com-
petent to deal with the most complicated case of bodily disease,
and doubtless he did all possible for his patient, skillfully
and conscientiously, although the disease was beyond the
reach of human science or skill, according to his testimony.
WAS THE CONDUCT OF FRENCH AND BURTIS CONTRARY TO MASONIC
CUSTOM 1
It is charged that in assuming control of the funeral arrange-
ments, French and Burtis acted contrary to Masonic cus-
toms; but, although both contending counsel and some of the
witnesses are well advanced in Masonry, it is not quite clear
to the court from their arguments or from the evidence
whether there was a culpable breach or a strict observance of
custom on this occasion. Counsel for contestant a.sks, Why
did Burl is Bend for French? Counsel for respondent says
this is c i.-y to answer — simply because French was the Com-
mander of the Commandcry to which both belonged ami it
3 his duty to attend to the matter. Counsel Kelly in
aking of the conversation at Mr. French's office, where
I Burtis, French, F. W. Sumner and Booth,
-;iys, "French w;is eager to snatch the plum," and asks. Why
did he not go to the public administrator's office? It was
! in reply thai this was because there was an aversion to
to a trator, for it is as much as to say that
< ; : has no friends, ami in such a as this, win re
the decedent was a. e c of ;l Commandezy, it was or
Estate op Dama. 195
seemed to be proper to do as French did, and it is claimed
that Mr. French's evidence explains fully and fairly his con-
duct, and that his testimony in regard to the funeral arrange-
ments is corroborated by Frank W. Sumner and Andrew G.
Booth. Booth made, he thinks, the suggestion of a special
administrator and declined himself to act because he thought
it was the duty of French, as Commander, to act, and Booth
"was glad to shift the burden upon him." It is said that
French acted with unseemly haste in taking control of the af-
fairs, but it appears in evidence that Mr. Sumner called up the
undertaker. Mr. Halsted, and that the expedition evinced in
embalming the corpse was due to the advice of Dr. Brigham,
who said that if the body was to be embalmed, the sooner the
better. It does not appear that Mr. French had anything to do
with the employment of the undertaker or the securing of the
services of Dr. Kenyon as embalmer. French had nothing to
to do with either except generally to suggest the propriety and
necessity of having the operation performed in the most skill-
ful and scientific manner — "a first-class job." It was neces-
sary that the body should be treated as speedily as possible, be-
cause the deceased was a victim of " Bright 's disease," and it
was essential that the process should be perfect, as the corpse
had to be transported to the Atlantic states and no risk could
be run as to inadequate treatment — therefore French was so-
licitous on the subject ; the condition of the corpse demanded
instant attention, as it was in danger of decomposition, and that
had to be arrested at once. What was it that these "conspira-
tors" who constituted the "convocation" convened in the
office of French did in consummation of their conspiracy?
Counsel for respondent argued that they went about the
business in a manner that was free from suspicion of irregu-
larity. The testimony of Frank W. Sumner was that he
recollected receiving a telephone message about Dama's death
late in the afternoon, just before dark, and went to French's
office and found there French, Burtis, and Booth. Sumner
had known Mr. Dama, he was a member of his Commandery
of Knights Templar, and he had also taken lessons of Dama
about a year before his death for about a month; he did not
see French go to the desk or table in the room where Dama's
body was laid out and get some papers and show them to a
196 Coffey's Probate Decisions, Vol. 5.
lady and then put them back ; Sumner was there all the time ;
he was a military officer at the funeral at Dr. Barrows'
Church ; Sumner knew the customs of the Commandery in
regard to burial of deceased members and was especially
familiar with reference to the details in connection with the
deceased Dama. During the year that Sumner was Com-
mander no funerals were conducted by the Commandery ;
Dama was a member of the Commandery and had joined at
the earnest solicitation of Columbus Waterhouse. who was
more his friend than anyone else in the Commandery; Sum-
ner was requested by French to act as special administrator,
but refused; Burtis was requested to act in that capacity;
Sumner did not remember who made the request, but it was
in the course of a general conversation ; Sumner was not
aware at the time of Professor Dama's funeral that he had
belonged to any local lodge, the "Blue Lodge" at the Mis-
sion, or any other, and said that Dama's petition did not
show his "Blue Lodge," nor did it show to what lodge he
belonged; they believed at the time that the deceased Dama
belonged to a lodge east, and that he had no relatives or
friends in San Francisco to take charge of his remains ; after-
ward Sumner learned that he was a member of the Mission
"Blue Lodge"; Sumner was not particularly interested in
the event of this case, but was an especial friend of Frank J.
French, and had been so for several years, and he was not
interested otherwise than in a friendly way. Andrew George
Booth testified that he was a member of Golden Gate Com-
ma n dory, knew there was such a person as Luigi Dama, a
member of that body, but was not personally acquainted with
him; he had been consulted with reference to the details of
arrangements for the funeral of Dama; he did not know that
Dama had any relatives here, or that he was a member of
any local lodge, and in such case it was the duty of the
omandery to take charge of the remains and conduct the
funeral ceremonies; Booth thought that he made the sugges-
tion of a special administrator at the meeting where French,
r. Burtis, ami himself were present discussing the sit-
ion, it was simply a mooting of members of the Command-
ery to discuss as to what should be done about the burial
of the d ased brother member who died in the circum-
Estate op Dama. 197
stances related; Booth was then second officer — Generalis-
simo of the Commandery ; Booth was not requested to act as
special administrator; he did not recollect anything of that
kind ; he was requested to draw up the papers, but not for
himself; but he declined and said that French might more
appropriately act, he being the Commander, and Booth was
glad to shift the burden upon French; during the time Booth
was Commander he did not act as attorney for the estates
of deceased members. William Edmund Price testified that he
was a member of Mission Lodge, No. 169, F. and A. M., he did
not know Luigi Dama, was not aware that he was a member
of that lodge until after his death, he identified the applica-
tion of Dama for admission to that lodge, dated January 2,
1882; Dama was admitted by affiliation and had the same
standing as other members ; Dr. Price thinks he first learned
of Dama's death from the secretary of the lodge, James R.
Buscelle; after that Mr. French waited upon Price and told
him that he had supposed Dama was a member of an eastern
lodge, and upon that assumption had undertaken for the
Commandery to conduct the funeral, but having afterward
learned that deceased was a member of a local lodge, of which
Price was Master, French desired him to take charge, but
Price urgently solicited French to do so, as the Mission Lodge
had had several funerals then recently and Price assured him
that they all should be pleased to have the Commandery con-
duct the ceremonies and assume or continue control of the
obsequies — moreover, as Price had never witnessed a funeral
under the auspices of the Templars, he would be glad of the
opportunity of participating upon this occasion; Mr. French
acquiesced finally, and at the time of the funeral Price walked
with French to the church at the head of the procession. Co-
lumbus Waterhouse testified that he was Commander of Golden
Gate Commandery for one year and knew the custom of that
Commandery in reference to the burial of deceased brethren,
and it was not the custom to take charge of the body and
effects of deceased members, and Dama could not become a
member unless his petition showed that he was a member of
a "Blue Lodge," and Professor Dama's petition did show
that he was a member of Mission Lodge 169, located in San
Francisco. At that time Mr. French was not an officer of
198 Coffey's Probate Decisions, Vol. 5.
the Commandery nor a member; "W. 0. Gould was then the
Commander but he was absent, and Tristam Burges, now de-
ceased, was acting in his absence. Mr. Waterhouse had been
a "Blue Lodge" Mason since 1856; he took all his three
degrees at that time — that is the first, second and third
degrees, entitling him to become a member of the "Blue"
Lodge, and that was the time that Waterhouse became in-
itiated as a Mason. Dama was made a member of the Com-
mandery during Mr. Burges' term in 1883 and Gould presided
in absence of Mr. Burges. Columbus Waterhouse was Com-
mander in 1884 ; elected in December, 1883 ; during his term
General George W. Deitzler was buried by the Commandery,
which was the only burial during his term; the Commandery
has a burial service; General Deitzler was the first burial in
that Commandery; Theodore F. Tracy was buried by Com-
mandery during Waterhouse 's absence ; Waterhouse had never
seen a Knights Templar funeral until that of General Deitz-
ler, although he had been a Knight Templar then about
twelve years, having joined in Sacramento in 1872. Charles
F. Brown, a resident of San Francisco for upward of forty
years, a Mason of high degree, thirty-third degree, Scottish
Rite, R. A. M., F. and A. M., and other branches, testified
that there was a Masonic custom where there is no expressed
desire to the contrary by the decedent, in the absence of any
immediate family of the deceased or any relatives, for the
Master of his lodge to take charge of the effects of the de-
ceased brother and if necessary to apply for letters of ad-
ministration and to look after the funeral; Mr. Brown was
speaking of the "Blue Lodge."
DIVERSITY OF OPINION AS TO MASONIC CUSTOM.
There seems to be a diversity of opinion between these emi-
nent Masons as to the custom of the Commandery, but upon the
whole, while, in the light of the present controversy, it would
have been wiser on the part of Mr. French to have gone to the
public adminisl rator, the chosen instrument of the law, in cases
where there were no resident relatives, or to have obtained a
Special permit from the court to have examined the safe deposit
box with reference to the existence of a Will, as has been the
Mm for many \ ears including the time of Dama's death, yet
Estate of Dama. 199
French's conduct had sanction in the circumstances existing
and the apparent necessity of immediate action and the rela-
tion of decedent to himself, as a member and Commander of
the Golden Gate Commandery. The evidence of Dr. Price,
the Master of the Mission Lodge, also tends to corroborate
the testimony of French, showing that as soon as he ascer-
tained the local Masonic relation of the decedent he applied
to the Master of his lodge to take charge of the ceremonies,
and it was only upon the latter 's insistence that French pro-
ceeded with the management of the affair.
THE APPLICATION FOR SPECIAL ADMINISTRATION CONSIDERED.
The proceedings in connection with the application for letters
of special administration, while informal in their character,
were such as had been justified by a practice of long existence,
but which the present judge of this court has materially modi-
fied by requiring all such applications to be made in open court
and upon notice, and if illustration or example were necessary
to show the propriety of such modification, it could not be
more strongly supplied than in this instance, although the
judge who made the modification is the same who made the
order in the case which furnishes the example. Had that
application been made in open court, and the order granting
it been inscribed upon the minutes, and the time of such ac-
tion noted therein, as it should have been, there could now be
no confusion of recollection as to the circumstance or the
point of time of the transaction which has been so important
and perplexing an item of dispute in this controversy. I
am satisfied from the evidence that that order was made after
2 o'clock on Saturday, January 21, 1888. The visit to the
safe deposit vaults occurred on the same day after the order
was granted. This is verified by the little memorandum-book
of Curtis, the superintendent, notwithstanding the apparent
alteration in that book upon which counsel for contestant
laysso much stress, and which is explained by the testimony
of Niss and Curtis as having occurred through a mistake in
"calling off the wrong number."
NO REASON TO DISCREDIT CURTIS.
I know of no reason why the court should reject the testimony
of Curtis except that he has confessedly made a mistake which
200 Coffey's Probate Decisions, Vol. 5.
undoubtedly misled the counsel for contestant in the first in-
stance, but, so far as the court can judge from the evidence,
Curtis is entirely disinterested, responsible, upright and trust-
worthy, and occupying a position which requires for its suc-
cessful administration the possession of all of these qualities,
and in addition to this the court's own knowledge of the cus-
tom of the company is in conformity with Curtis' testimony,
for it is an every-day experience that prior to granting per-
mission to open or examine the box or vault of any deceased
person the companj^ requires the written order or permission
of the judge or letters of administration, and within the
knowledge of the judge this order has been so strictly ad-
hered to that in the case of the death of the manager of the
corporation itself, the late General Washington L. Elliott,
the company refused permission to his relatives to examine
his box until they had obtained the written sanction of the
court. That being the custom of that company, the court
cannot conceive of any reason arising from an examination
of the evidence why, in the particular instance in question,
it should have been departed from. The testimony of Cur-
tis has already been abbreviated in the course of this opinion
in connection with the evidence of the Rev. Mr. Worcester.
Among other things, Curtis testified that the Rev. Mr. Wor-
cester visited the Safe Deposit Company vaults early on the
morning of Saturday, January 21, 1838, and the book of
records shows this, although Rev. Mr. Worcester has totally
forgotten it. It was after that visit and the information
of the death of Dama that Curtis put the seal on the safe
according to the custom in such cases; it is not strange that
Mr. Worcester forgot these matters after his interest had
in making any further inquiry. When Mr. Worcester
found that another person was named in the memorandum
taken from the box he considered that he was dN"harged from
any duty that might have devolved upon him in any former
Will; then his interest ceased in the subject matter of that
paper and in the contents of the box. Mr. Worcester's char-
acter is entitled to the highest commendation; there is no
doubl that his testimony is given in good faith, but his recol-
lection is infirm, indeed lacking with reference to the par-
ticular v i - j t on the morning of that day, and his testimony
Estate of Dama. 201
upon that point is based upon a habit which he thinks it
utterly unlikely he should have departed from on that occa-
sion, although he says it is possible he did so depart, and the
testimony of Curtis is clear, positive and precise to that fact
of that visit.
THE "SHORT MEMORANDUM."
I take it, therefore, that the testimony of Curtis as to the
occurrences at the Safe Deposit Company is truthful, and
that so far as the contents of that box were concerned they
were first exposed subsequent to the death of Dama at the
time when Worcester, French and Burtis were present, and
that no opportunity had existed prior thereto by any sleight-
of-hand process to introduce the "Short Memorandum" or
any other paper into that box. This is a very important item
of evidence, for, if the theory of contestant be sustainable by
the record, that the visit of Burtis was made at 2 o'clock on
that day, Saturday, January 21, 1888, and that then the
"Short Memorandum" (Respondent's Exhibit 1) was sur-
reptitiously inserted in the box, there is an end of the case.
This "Short Memorandum," a crude tracing of which is in-
serted in this opinion, is one of the most puzzling papers in this
case, and, if a forgery, has been aptly described by counsel for
contestant as the ' ' most vicious forgery of them all. ' ' It has
been subjected by me to the severest scrutiny that I am capable
of exercising. Its authenticity must be determined by compari-
son and by circumstances. The reason of its existence is diffi-
cult to understand, its necessity by no means clear, and its
authenticity not readily determinable on its face, for its coun-
tenance is most uncanny. Counsel for respondent says that the
letter to Miss S. Buhne (Respondent's Exhibit 89) compared
with the "Long Memorandum" (Respondent's Exhibit 2) are
exactly alike, on the same paper, identical water-mark, line for
line, mark for mark. This is not so ; they are both on sheets
of note paper; they tally line for line, but the appearance
of the paper, to an almost imperceptible degree, differs in
size and superficial quality, and while there is a water-mark
in the Buhne letter (Respondent's Exhibit 89) there is none
discernible in the "Long Memorandum" (Respondent's Ex-
hibit 2) except the longitudinal water lines which, although
they are the same number — ten — in each paper, do not cor-
202 Coffey's Probate Decisions, Vol. 5.
respond when superposed; but the "Short Memorandum" is
on paper identical with that of Contestant's Exhibit M-13,
an undoubtedly genuine document written by Luigi Dama,
the copy of Mrs. Dama's Will attached to the Eandall deposi-
tion; both these documents are on foolscap, the pages exactly
the same length and breadth, no water-mark in either except
the stamp on the upper left-hand corner "Congress" with
the figure of a building "Xiantic Mills." Counsel for con-
testant contended that they had met the proposition as to
the physical paper upon which the "Will was written and
had shown the fallacy of the adverse counsel's contention
that it was the same as the ordinary "legal cap" to be found
in any stationer's shop and used for a score or more of years
in the courts and law offices, and directed the attention of
the court to the water-mark "Niantic" in the sample of com-
mon and ordinary legal cap (Respondent's Exhibit 96) in-
troduced to show the identity of the quality or kind of paper,
whereas, in the "Altered Will" and in the alleged Will there
is no water-mark at all ; hold up to the light and examine and
compare both and observe the difference; this the court has
done, and considers, as counsel contends, that it is remark-
able that Dama should have departed from his usual habit
of using foolscap, for the "Altered Will" of November, 1885,
and the alleged Will of May 8, 18S7, were written on the
same kind and quality of paper, and these are the only two
instances in which we have examples of his using legal cap, and
neither is identical with Respondent's Exhibit 2 either in
quality, kind or water-mark. This "Short Memorandum"
is a peculiar paper, and its claim to acceptance by the court
largely dependent upon the improbability of its haying
been placed in the safe deposit box by anyone but the de-
cedent Dama. The preponderance of positive proof is that
do one visited that box except Dama on May 3, 1887, and
in "ii May 20, 1887, his lasl visit, until January 21, 1888,
when the box \v. ted and its contents exp ised and exam-
ined in presence of Worcester, French, Burtis, and Curtis;
refore, whatever the perplexities arising from an exam-
ination of the paper itself, and an endeavor to account for
its contents, it would seem to be established thai thai paper
wa d in the box prior to the death of Dama and by
him.
Estate of Dama. 203
THE "LONG MEMORANDUM.' '
The draft of the "Long Memorandum" (Respondent's Ex-
hibit 31), a paper of two pages, half -sheet note paper, has
been pronounced genuine by the experts Piper and Young
and also by Columbus Waterhouse, all witnesses for contest-
ant, and both the experts Piper and Young say that the man
who wrote the Will wrote this "Draft of Long Memoran-
dum" (Respondent's Exhibit 31), and, after a very careful
examination, I am prepared to accept this opinion, coming
from a hostile source, as correct. I have, in compliance with
the strenuous request of the counsel for the contestant, com-
pared this draft (Respondent's Exhibit 31) with the "Long
Memorandum" (Respondent's Exhibit 2), without being able
to agree with him in the conclusion that it is "another of
the decoys" furnished by the respondent. The counsel de-
sired the court to note the second page of the draft, and
asked, What is the word "acre's" doing there, and why is
the w r ord "Memorandum" at the bottom instead of at the
top? He admits that it is true that some of the experts
upon a casual inspection said it was genuine, or rather that
it looked like Dama's writing, which, of course, it did upon
superficial view, but the momentary deception could not alter
the fact that this paper is a decoy; it only more strongly
established that fact; and the hurried opinion extorted from
the expert Dr. Piper on the stand should not weigh against
it or against him as an expert ; but, notwithstanding this con-
tention of counsel, I am unable to conform my views to his con-
clusion, and feel obliged upon the evidence to pronounce this
paper, "Draft of Long Memorandum" (Respondent's Ex-
hibit 31), to be in the handwriting of Dama, and I believe
that the same hand wrote the "Long Memorandum" (Re-
spondent's Exhibit 2). Among the items of identity between
the disputed and undisputed papers should be particularly
noticed the mistakes of spelling and of grammar that are
common to all; take, for instance, his spelling of valuable,
"valueable," influence, "influece," "a ring with a large soli-
taire diamonds," "acre's," his use of the sign of the posses-
sive case in plural words, for example, ' ' acre 's ' ' for ' ' acres ' ' ;
this is conspicuous in all his compositions; and notice the
word "market" for "marked" in the "Short Memorandum"
204: Coffey's Probate Decisions, Vol. 5.
(Respondent's Exhibit 1) ; and other coincidental peculiar-
ities might be pointed out in controversion of the contention
of counsel for contestant. Some of the exhibits illustrating
these peculiarities came from the custody of, or have been in-
troduced in evidence by, contestant. A noteworthy example
of this may be found by comparing the word "influece" in
line 18 of Contestant's Exhibit L-12 with the same word "in-
fluece" at the end of line 83 of the alleged Will. The peculiar
use of the apostrophe in plural words has numerous examples
in authentic documents.
THE "f" IN THE WILL.
The \j* in the alleged Will is always in one form in
that paper, and is a remarkable departure from his usual
authentic writing, although as a part of the capital
£/*%, it commonly occurs in the same instrument.
The only examples I have found in the writings assumed
to be authentic are in Respondent's Exhibit 27, (mem-
orandum of amounts to be received from Benjamin Ran-
dall), and in Respondent's Exhibit 128, one of the many
copies in Dama's handwriting of his circular, a very care-
fully written copy, evidently prepared for the printer.
This . exhibit 128 merits minute inspection in connec-
tion with the respondent's theory of the testator's manner
of constructing the Will. It is well to note here that
Contestant's Exhibit H-60, a copy of the same circular,
is written on exactly the same kind of note paper, same
trademark, "Live Oak," impressed on an oak leaf, and
this is also true of Respondent's Exhibit 128, — all these
exhibits are identical in characteristics, excepting the
one letter in the Will form, at the end of the tenth
line nf the second page of Respondent's Exhibit 128.
This point seems to have escaped the attention of experts and
counsel on both sides.
It is plain from an examination of these several circulars
that Dama was very slow in English composition, and always
made drafts of every paper he considered important, and
Estate of Dama. 205
his process of preparation from the initial draft to the com-
pleted document is nowhere better illustrated than in these
undisputed writings, from Respondent's Exhibit 20 through
Contestant's Exhibit H-60 to Respondent's Exhibit 128, the
final copy for the printer, which should be closely compared
with the Will in dispute.
dama's method of composition and writing.
This shows that Dama was careful and painfully labori-
ous in his methods of composing and writing in a language
that was foreign to him. There are several instances of his
method. See draft of his answer to Miss Buhne's letter of
September 3, 1883, on the back of that letter, Respondent's
Exhibit 44, in which he alludes to his "great effort to write
english," and in which also occurs a sentence significant in
connection with the "Second Draft "Will," Respondent's Ex-
hibit 4, "I will try to do my best to make you indipented
[independent] from everybody else." This sentence is sig-
nificant to my mind because in this "Second Draft Will"
he seemed to contemplate bestowing the bulk of his fortune
upon Miss S. B. (Sophie Buhne), his "dear friend"; thus
making her, according to my inference and interpretation,
"independent from everybody else." His habit is also ob-
servable in the draft of his letter to his "sincere friend,"
Martha E. Chase, Respondent's Exhibit 43, written on the
inside blank pages of that letter; and the letter as received
by his "dear friend," Mrs. Chase, shows the fastidious care
with which he produced his perfected work, Respondent's Ex-
hibit 73.
The earlier processes applied and pursued by the fabri-
cator of the disputed document may be traced by compari-
son with the Will of Wealthy B. J. Dama (the paper re-
fused probate by this court for want of a complete date),
and the fragment of the Will drawn by the Notary Wigger
in 1882, Respondent's Exhibit 78. This fragment is most
important to illustrate the mode in which the disputed docu-
ment was wrought out, and it undoubtedly served as a model
for the form of the Will in question. The first, second and
third clauses are almost identical, even the word "decease"
was so originally spelled in the Wigger Will, third clause,
and the correction so made as to leave the "c" over the orig-
206 Coffey's Probate Decisions, Vol. 5.
inal "s" in "decease" difficult to distinguish. The Notary
Wigger calls this a "rough draft of the Will." (Respond-
ent's Exhibit 78; another paper, apparently a fragment of an
engrossed copy of the Wigger Will, Respondent's Exhibit 48,
was not admitted in evidence and has not been considered by
the court.) The peculiar misspelling of the word decease,
"desease," is found in clause "Thirdly" of the "Altered
Will" and of the alleged Will.
The introductory clause of the disputed Will is copied lit-
erally from the unprobated Will of Wealthy B. J. Dama, ex-
cept the word "expenses" in the latter is spelled with a "c"
in the former — thus, "expences. " (See Contestant's Exhibit
M-13, the Randall Will, and Respondent's Exhibit 23, the
"Blue Will.")
The First Draft Will and the Second Draft Will, both on
opposite sides of one-half sheet of foolscap paper, "Congress
Niantic Mills" (Respondent's Exhibit 4), are plainly studies
in testator's preparation for the Will finally drawn and exe-
cuted.
WHY DID DAMA HAVE THREE SUBSCRIBING WITNESSES ?
The Second Draft suggests the vagrant fancy of testator
with respect to the beneficiary of his bounty; he leaves a
sum of $15,000 to be paid to a "dear friend" in San Diego
and all the rest to his "dear friend, Miss S. B.," and he ap-
points that same "dear friend S. B." executrix, and requests
that this "beloved friend" be not required to give bonds;
and at the end is the instruction — "sign 3 witnesses for the law
of California." Mr. Lloyd, of counsel, in commenting upon
this unusual instruction, says that D. S. Dorn's testimony about
having drawn a Will could not have referred to this instru-
ment and cannot be applied to any original from which this
instrument was imitated, because that instruction as to the
necessity of three witnesses could not have emanated from
Dorn, as he is a lawyer, and Dama must have imbibed the
idea from some other source, since no lawyer would give such
mis instruction. Perhaps not; yet on the very day
thai 1 am writing this page (Monday, January 25, 1892), a
Will was admitted to probate by me in the Estate of Alonzo
Newell, No. I !o which there were three subscribing wit-
nesses, the form being copied by a layman from a book called
Estate of Dama. 207
"Every Man His Own Lawyer"; and the legal firm of Mas-
tick, Belcher & Mastick, with exceptionally long and large
experience in this jurisdiction, habitually secure the attesta-
tion of three witnesses, not because it is the law of Califor-
nia, but as a measure of wise precaution in the event of the
inability to prove by two, the testimonj^ of the third may be
most probably accessible. (See the probated will in Estate
of George F. Bening, No. 11,743.) This was the reason given
to me by Mr. George H. Mastick upon inquiry as to the cause
in the last-named matter. But Dama may have imbibed his
idea while he was resident in the New England states, for
it appears that in Maine three subscribing witnesses are re-
quired, also in Massachusetts, and in Connecticut, New Hamp-
shire and Vermont, and formerly in Rhode Island: 3 Jar-
man on Wills, 5th Am. ed., note on pages 771, 772.
HOW THE WILL WAS DEVELOPED.
I have dealt so extensively with the expert evidence in the
first part of this opinion that I do not care to revert to it,
except in connection with a few points which impressed me
originally against the genuineness of these disputed docu-
ments. I viewed with distrust at first the testimony concern-
ing the large yellow envelope marked "Private Paper," Re-
spondent's Exhibit 28, and the large white envelope marked
"Will and Testament," Respondent's Exhibit 29, but, on
comparing these two papers respectively, Respondent's Ex-
hibit 28 with the yellow envelopes, Respondent's Exhibits
61 and 21, the first containing contract between Luigi Dama
and William T. Cummins and the second the lease from Luigi
Dama to Owen McMullen, March 23, 1887, and the large
white envelope, Respondent's Exhibit 29, with Respondent's
Exhibit 22, also large white envelope marked on the out-
side "Contract and Deed Horace Davis to Luigi Dama, May
26, 1885," all superscriptions assumed to be authentic, have
found them to be identical, and so conclude that the testi-
mony that he had these envelopes, the yellow one marked
"Private Paper" and the white one marked "Will and Tes-
tament," is at least credible.
The paper called the "Altered Will," Respondent's Ex-
hibit 3, was undoubtedly the last paper used in the prepara-
tory process of fabricating the alleged Will. Counsel for
208 Coffey's Probate Decisions, Vol. 5.
the contestant has adjured the court to consider with cau-
tion this "decoy," which, he declares, in itself furnishes
ample internal evidence of the scheme of forgery of w*hich
the alleged Will was the ultimate sequence, and it is asserted
that if the court examine with care and circumspection this
"cripple," this "decoy," the "Altered Will" of pretended
date November 1, 1885, and compare and construe it clause
by clause, it affords indubitable proof that the alleged Will
was the culmination of a series of forgeries, the crown and
apex of the structure of fraud. I have perused this paper
again and again with no prepossession in its favor, but, on
the contrary, with a doubt of its honesty so far as superfi-
cial indications afforded basis for opinion, yet, notwithstand-
ing my many misgivings, the result of repeated exam-
inations and comparisons is in its favor. The form
of the capital letter (^Z^common to both the Altered
Will and the alleged Will occasioned as much perplexity
as the form of the capital ^j> , but I have found suffi-
cient similarity in some of the papers produced in evi-
dence, the authenticity of which is either assumed or not
assailed, to warrant me in saying that this form was not un-
known to or unused by Dama. See Respondent's Exhibit 68,
Story receipt, where it occurs in the initial letter of D. W. C.
Story, and also in the signature "Luigi Dama," and per-
haps less palpably in two or three other of these receipts, and
also in Respondent's Exhibit 6, lease from Luigi Dama to
Owen McMiillcn of Redwood City lots. It seems to me that
this alleged Will was developed in very much the same man-
ner as the circulars, Contestant's Exhibit H-60 and Respond-
ent's Exhibit 128, the last named being an absolutely perfect
manuscript, and H-60 being scarcely less so, and both seem
to be the culmination of the incipient draft, Respondent's
Exhibit 20. It is worth while critically to compare this ex-
hibil 20 with the "Altered Will" and the alleged Will, par-
ticularly with respect to the alterations in the "Altered Will"
and in the exhibil 20. There are, it seems to me, many pecu-
liaril '\< a common t<> both.
Estate of Dama. 209
peculiarities of dama's writing.
The expert Professor Young claimed that the crowning
characteristic and prominent peculiarity in the writing was
''the lifting of the pen," but, in taking selections from the
alleged Will, the "Altered Will," the "Blue Will," Respond-
ent's Exhibit 23, and the Randall Will, Contestant's Exhibit
M-13, we find, by comparing them one with another, out of
sixty-nine words, forty-five are exactly alike and twenty-four
different. As to the slope, a peculiarity testified to by Pro-
fessor Young, and the stroke at the end of the signature of
Dama, the flourish or rubric, the first loop of the rubric,
to which Professor Young attaches definitive importance, and
which both experts Piper and Young say is sufficient in and
of itself to condemn the disputed documents, because, accord-
ing to their theory, it was not Dama's habit to make loops, it
seems to be sufficient to allude to a few instances which appear
to negative and nullify their conclusion. The slope is illus-
trated in the Story receipts and in various other exhibits, Re-
spondent's Exhibits 104, 105, 106, and the yellow envelopes,
exhibits 21 and 61, and the large white envelope, exhibit 22,
and the Contestant's Exhibit H-60, all show the slope of the
Will, the change of slope is to be seen in all the papers. Ob-
serve the envelope on Contestant's Exhibit M-13, the formation
of the word "Boston ""in " East Boston, " and notice
the dashes = before and. after and under the word
= <&A&ja£$ -a. and the hook at the end of the first
dash under that word *■"■* . In connection with Pro^
fessor Young's deductions may be examined the signatures
brought from the German Bank, where will be found the for-
mation of the circle or loop, the first, in the rubric or flourish
under Dama's signature, and we may observe particularly in
Respondent's Exhibit 12, where the first circle or loop is much
larger than the second, thus showing the incorrectness of this
expert's universal inference; this also appears notably in Re-
spondent's Exhibit 36, Cummins Contract. Much discussion
was expended by the experts upon Dama's habit of making
loops, but it would seem that this habit increased according to
the care which he bestowed upon his writings; in other words,
Prob. Dec, Vol. V — 14
210 Coffey's Probate Decisions, Vol. 5.
the more care he took the more loops he made. The First
Draft Will appears to have been written with rapidity, very
few loops; a like observation applies to the Second Draft
Will; the "Randall Will," Contestant's Exhibit M-13, ap-
pears to have been written with more care, and shows an
increased proportion of loops, the "Blue Will," Respond-
ent's Exhibit 23, with still more care and a larger ratio of
loops ; and so with others, showing a gradual increase of care
and a proportionate increase of loops until the alleged
Will is produced; the small .^j and £4 may be taken
as illustrations which serve to show that as the writer
of the Will went on progressively he made more and more
loops until he finished the final paper, in the writing of which
he exercised the greatest care, bestowing unusual pains upon
every letter, large and small. It is not written in Dama's
usual hand, and that gives force to the proposition that if a
man wanted to forge the Will, he would have taken the or-
dinary and every-day hand of the writer, so that it would
not attract especial attention. If this Will were copied from
some original, then its main provisions, as presented in this
disputed document, must have been in that original instru-
ment.
dama's personal peculiarities.
It cannot be doubted from the evidence that Dama was
a very singular and curious man and did many odd and
peculiar acts, and one knowing the facts and not knowing
the man would find it difficult to account for his conduct, and
we have an illustration in his treatment of the Rev. Mr. Wor-
ter, who never did aught but kindness for him, and who
really troubled himself greatly to serve him, particularly in
Hie purchase of the Jackson street property, wherein Wor-
cester's part in the transaction was productive of great pe-
cuniary profit to Dama and of no advantage to Worcester,
and yet Dama became suspicious and acquired an aversion
apparently toward Worcester, and also, without ostensible
toward Columbus Waterhouse, although in their pres-
ence 1>" concealed his sentiments. The Rev. Joseph Worces-
ter described Dama, not inaptly, as a "preposterous man,"
and If marvel* d not that he should have made a "pre-
Estate of Dama. 211
posterous" Will. Dama was a notional man; he had no
stability of mind; he took notions to persons and then
changed them without cause; took a fancy to Waterhouse and
changed, and so with others, and gave them the impression
that he would leave to them his property, and finally he fixed
his mind on Mrs. Sara Barker Smith and made his Will in
her favor, but, had he lived much longer, he might have for-
saken this fancy for some other object of his capricious choice.
I think this judgment of his character is fairly inferable from
an examination, not only of his correspondence, but of the
First Draft Will, Respondent's Exhibit 4, wherein he leaves
to his "beloved ," and of the Second Draft Will in
which he names "his beloved friend, Miss S. B.," and of
Respondent's Exhibit 78, and of the many expectations which
he seemed to have inspired in the breast of nearly every one
of his pupils, including Miss Belle Harris, who testified that
she had a conversation with Professor Dama, in which he
told her that those people who expected to get his money
would be disappointed, and that he was now a poor man
and would have to depend on her, as he had left her all his
fortune ; although she did not infer from what he said that he
left her everything in a Will, for she thought there were others
connected with that Will. In my examination of the evi-
dence in this case I fail to find any example of abnegation
among the friends and pupils of Professor Dama; even
Thomas R. Knox expected, as Dama had no relatives here
and did not like his wife's relatives, that he would have re-
membered his friends, among others Knox or his daughter.
It would seem that he had as good reason to select Mrs. Smith
as his beneficiary as any other of his friends, or so-called
friends; she was very friendly with him; there were many
elements of sympathy between them; he taught her Italian;
they had both been abroad and were accustomed to converse
about many places in which they had been, and it seemed to
be natural in so notional a man that he should have chosen
her as his legatee, as it would have been natural, had he
lived long enough, to have substituted someone else who had
usurped her place in his fancy. It is claimed that his be-
quest to her was absurd, because of her age and his inability
to accomplish, through his method, in her case what he had
212 Coffey's Probate Decisions, Vol. 5.
done for other pupils, but, so far as I can gather from his
circulars and from the evidence of the pupils, his method
was principally, if not purely, hygienic; as Mr. Thomas R.
Knox said, Dama's theory was that by pursuing his method
one could live to a great age.
DAMA NOT MERELY A MUSIC MASTER.
Dama was not merely a music master, but a physician
and a hygienist, whose business it was "to know the
arrangement of these modifiable conditions, such as are
capable of being indefinitely modified by our own actions,
and how to influence them toward the maintenance of
health and the prolongation of life " (Professor Huxley
in Popular Science Monthly, Volume XI, page 669) and, ac-
cording to this theory of voice culture and progressive de-
velopment, there is no reason to doubt the evidence of another
of his "warm friends," Mrs. Helen Cushman, that notwith-
standing her mature years, his system would find in Mrs.
Smith an example and an exponent, hygienically if not artis-
tically, and that in the process of development she would
extend and perpetuate his theory of voice culture. The rea-
son of Dama's bequest to Mrs. Smith would seem, therefore,
to have had some basis in his system, which, according to
the testimony of Mrs. Cushman, recognized the validity of
the proposition that while life remained hope would survive,
and that through the use of his legacy to her, "for the pur
pose of further study and development of her vocal organs
and cultivation of the voice," Mrs. Smith might be greatly
benefited; and to justify this view of the subject matter I
think it not out of place to here insert a copy of the circular
of the decedent, which succinctly states his theory of voice
cult me. The one I choose to copy herein is Respondent's
Exhibit 128, which is identical in terms with Contestant's
Exhibit II-60, as follows:
"Prof*. Luigi Dama, graduate of the Royal Conservatory
of Naples, [taly, a resident of this City for the last eight
years, but recently returned from a visit Mast, again offers
bis services to the Public.
"Prof*. Dama has made the cultivation of the voice the
study arid practice of his life both physiologically and in
vocal training, and feels assured that he understands and
Estate of Dama. 213
can overcome the difficulties which obstruct the free use of
the voice by public and private singers and speakers and by
all who are compelled to prolonged vocal expression. He
has satisfied many of our intelligent citizens through their
experience that the right use of the voice is the free use of
it, and that the sound properly formed, can be made in any
required volume and as tirelessly as the birds sings. Prof 1- .
Dama has also traced many of the most obstinate and baf-
fling disease, not only of the throat and lungs but of the
liver, stomach, and other organs closely connected with them
to the misuse of the voice. For the right use of the voice
is the right and active use of the lungs, and the full and
complete action of the lungs involves the right action of all
the organs of the chest and abdomen, but especially does it
involve the proper aeration of the blood, its lively circula-
tion, and the ample supply of pure blood to the vital organs
and prompt removal of the waste particles. Cases of chronic
disease of the throat, even malformation through misuse, also
of long impaired digestion and assimilation, of obstinate head-
ache and nervous prostration have been cured or so greatly
helped by Prof 1 ". Dama as to win for him the warm gratitude
of his pupils.
"Prof 1 ". Dama has observed what all thoughtful travelers
are familiar with, the extraordinary prevalence of all dis-
eases incident to the wrong use of the voice and imperfect
action of the lungs in our own country.
"He finds it to be due in part to the practice of lingering
upon the consonants notably upon the r, and the incomplete
enunciation of the vowels, he knows that he can correct this
to the great and delightful increase of life and activity to all.
"There are many in this vicinity who would be glad to
be referred to for the substantiation of this from their own
experience.
"Prof r . Dama's residence is No. 317 Mason Street, just
below Geary, where he may be found."
I have said all that seems to be necessary concerning Clause
Sixthly of the alleged Will.
THE SIGNATURES OF THE SUBSCRIBING WITNESSES.
Now. as to the signatures of the subscribing witnesses to
the Will : Jules Mathieu made oath in this court, on the
211 Coffey's Probate Decisions, Vol. 5.
original probate of this Will, that that was his signature,
but, apart from that, a comparison with his writings herein
proved shows the genuineness of the signature attached to
the Will, and of these writings there are numerous examples
which I do not deem it necessary to recount. In the strong
light of the adverse criticism expended upon the testimony of
the witness Henri Godard, I can see no reason to reject his
evidence that he witnessed and subscribed the alleged Will in
the manner and circumstances sworn to by him on February
13 ?/ 1888, and on November 21, 1890. The witness Antonio
Bellini was the occasion of more dispute and doubt than per-
haps any other, but I think now, as I thought at the time
when he first appeared and testified in this court, that, either
through ignorance or design, he did not in his testimony state
the facts as they existed at the time of the execution of the
Will, May 8, 1887. It was difficult, indeed, to bind this wit-
ness to any intelligible statement; he was evasive and con-
tradictory in his manner, and it was apparent to the court,
as was stated on February 13, 1888, that while this witness
Bellini can talk English well enough to make himself under-
stood, yet, when the court told him, on that last-mentioned
date, to tell all he knew about the making of the Will, and
asked him if he talked English in his business, he answered,
"Yes, sometimes I talk something that is no good, and no-
body knows what I talk but myself." I think now, as I
thought and said then, that when Bellini wanted to make
himself understood he was capable of doing so in English.
On the examination here on November 20, 1890, it was quite
plain that he was determined to deny, and to adhere to the
denial, that he had signed the paper presented to him, and
that he had never seen it before that day, and that it was
not the paper the judge showed him on February 13, 1888,
that his signature was not on the same paper; that it was
Dearer the bottom of the page, about four fingers from the
bottom, although, of course, it was the same paper; and upon
redirecl examination he affirmed again thai it was not the same
paper (indicating the Will admitted to probate February 27,
L888), although, when an interpreter was called in, he cor-
ited his statement ami said that i1 was the paper bu1 with
diffi rence, that at the former hearing, February 13, 1888,
Estate of Dama. 215
it was fresher and newer than at the time of his testimony,
November 20, 1890. Bellini swore that the paper he signed
in Dama's house had a stamp on it, but the color he could
not remember, whether it was black, or red, or blue, and
again he said that he did not know that paper, the alleged
Will, never saw it before the day of testifying, November 20,
1890; the paper he signed was a similar paper; and then
again he affirmed that this probated paper was the one shown
to him by the judge on February 13, 1888. Upon the same
day in his testimony he swore positively that the word
"Antonio" and the words "222 Ofarrelle" were in his hand-
writing, and he also added, voluntarily and impressively, "I
swear it," but the next day he explained this by saying that
he was excited and did not clearly understand it and subse-
quently he understood it better. It has been stated here, in
the course of argument, that this witness swore that there
was a red seal in the paper to which he subscribed after the
signature of Luigi Dama ; but this is an error, as appears from
the official report of his original testimony, February 13, 1888,
in which he swore that the paper that he signed had a stamp
on it, "it was evening and he did not look very well but he
knew it was stamped paper," and in answer to the question,
"Was it a seal, or an impression without a seal?" he said,
"It was an impression"; and to the further question, "Was
it a wafer, or a paper seal, or just some impression made by
a press in the paper?" he made answer, "It was an impression
on the paper itself." The troublesome feature of this signa-
ture is the unique mode of writing "Bellini," but it is ex-
traordinary, if a forgery were attempted to be perpetrated in
this signature, that so remarkable a departure from the
common hand of the witness should have been taken. It is
more reasonable to believe that the witness himself wrote
this for some reason unaccountable to anyone else, and there
are certain characteristics of the letters in that word which
are reproduced in the specimens of the witness' handwriting
given on page 3 of the judge's manuscript notes, written
Thursday, November 20, 1890, and on the paper marked Re-
spondent's Exhibit 30, written in court, at the instance of
the judge, on February 13, 1888. Reference is here made to
the figures "222" in the alleged Will, in the judge's notes,
216 Coffey's Probate Decisions, Vol. 5.
and in Respondent's Exhibit 30, to the "rr" in "O'farrell"
in these papers, and it seems to me that those specimens of
the writing show similarities with the Will signature, and
when we take the photographic enlargement (Respondent's
Exhibit 115) of portions of those specimens and compare
with the photographic enlargement of the "Will signature
(Respondent's Exhibit 116), we find identities in literal
formation.
WHAT THE LAW REQUIRES IN ATTESTED WILLS.
Now, assuming that the evidence of this witness is in
itself uncontradictory and contains no inherent element
of improbability, it is at variance with the positive testimony
of the two other witnesses, and the probate of a Will is not
to be denied or revoked upon such testimony, nor is the
action of the court dependent on the recollection or the
veracity of a subscribing witness. The law, for wise and
obvious reasons, requires such instruments to be executed and
attested with such precautions as will usually guard againsl
fraud ; but, if the forgetfulness or falsehood of a subscribinu
witness can invalidate a Will, it would be easy, in many cases,
to use such artifices or corruption as would render the best
Will nugatory. The evidence of a subscribing witness is not
conclusive either way, nor does the law presume that he is
either more or less truthful than others ; it does presume that
he had, when he signed, full knowledge of what he was doing,
and, in case he is dead, his attestation, when proved, is prima
facie evidence that all was done as it should have been ; but in
all contested Will cases the case is open for general witnesses,
and when the testimony is all in, each witness is credit id
according to the impression he leaves of candor and intelli-
gence, and not according to his being, or not being, an attest-
in- witness: Abbott v. Abbott, 41 Mich. 540, 2 N. W. 810.
ther failure of memory nor the corrupt or false swearing
of attesting witnesses will be allowed to defeat a Will if its
due execution can be shown by other testimony. Mere failure
of the attesting witnesses or their denial of the facts will not
defeal it it' it can be established by other evidence: Ilaynes
v. Baynes, 33 Ohio St. 598, 31 Am. Rep. 579; 3 Redfield
on Wills, c. 3, Bee. 3, p. 9, and 1 American Probate Reports,
p. 271, and cases there cited.
Estate of Dama. 217
Other evidence of a valuable character as to what occurred
at the moment of the execution of the Will is supplied by
the testimony of Gaetano Dellasanta, who seemed to me to
be a fair witness, and who told the story of how he came to
l;e present, upon the occasion and what took place at the time,
and why his signature was not required or given, in a plain
and straightforward manner. Dama told him he need not
sign, because three witnesses were enough, and they had al-
ready signed. Dellasanta said that after Bellini wrote his
name everybody made a remark, because of the way he signed
his name, and the paper signed then and there the witness
believed to be the same paper here in question, although "he
was not judge enough to swear that no man could imitate
The paper, and would not swear positively that it was the
same paper," but it appeared to him to be the same.
UPON WHOM RESTS THE BURDEN OF PROOF.
Counsel for contestant in his opening statement said that he
would show that this alleged Will was forged, and if he
should not succeed in identifying the forger in person or
place his finger upon him, the burden would rest upon those
who caused the instrument to be probated. I do not under-
stand this last proposition to be the law. The burden of
proof is not upon the defense, but upon the prosecution.
While the contestant is not called upon to indicate the
forger, he is compelled in a civil contest to establish by a
preponderance of proof the charge laid in his complaint.
It is certainly not incumbent upon the respondent to do
more than hold the balance. "The party holding the affirma-
tive of the issue must produce the evidence to prove it; there-
fore, the burden of proof lies on the party who would be
defeated if no evidence were given on either side": Code
Civ. Proc, sec. 1981. "Each party must prove his own
affirmative allegations": Code Civ. Proc, sec. 1869.
I do not think that either Henri Godard or Mrs. Fannie
Johnson had the capacity to execute, even had they the talent
to conceive, the concatenation of forgeries which must have
preceded the culmination of this crime, if the alleged Will
were forged.
218 Coffey's Probate Decisions, Vol. 5.
Conclusion.
I have striven in the preceding pages to present a full
and a fair view of the evidence on both sides and of the
opposing views of counsel, desiring by process of redaction
to compress the mass of matter into manageable dimensions
without eliminating an atom necessary to a just judgment.
It may be that I have not succeeded in my earnest endeavor.
Some witnesses may have received too much attention, some
not enough, other some none at all. Mrs. Ann Herbert Barker
and Mrs. Anna B. Bradstreet have been passed by, not
through discourtesy, but because treatment of their testimony
was hardly justified by its tenor. This remark may apply
also to others. But I am conscious of no omission or oversight
that was necessary to a correct conclusion, and so far as
human judgment applied to human testimony can secure a
right result, I think it has been reached.
The importance of this controversy is not to be measured
by the magnitude of the estate. It matters not whether that
be large or small, the crime here charged to have been com-
mitted is great ; it involves forgery and implies murder ; and
if the court have erred in judgment, and that error should
be perpetuated or remain uncorrected, it will be an error of
grave character and grievous consequence. One of the coun-
sel has said that this case is one of importance paralleled only
by the famous Broderick Will Case (No. 1079 old Probate
Court), and many circumstances conspire to raise it beyond
that in importance. It is important, also, because of the
number and character of the persons implicated in the crim-
inal conspiracy alleged, for at least a dozen persons of
hitherto high standing in this community are concerned in
complicity, and if they be guilty as charged, the penitentiary
should be their portion, if not the gallows. I have ap-
preciated its importance intensely, and have felt an un-
usually acute sense of responsibility because of the frequency
of forgery asserted or attempted, and perhaps sometimes suc-
jful, in courts of probate, and because of the experience
that haa been my fortune to endure in this class of cases. It
is not necessary to enumerate or specify the cases that in the
In re Reichle. 219
course of now nearly ten years it has been my lot to investi-
gate and decide; I am certain that in one case at least this
court was constrained by testimony of experts and others to
admit a false and fabricated paper to probate, although the
well-grounded distrust and unreserved expression of the
court in that case prevented the successful issue of a fraud
by the same parties in another cause tried in a co-ordinate
department.
I have deemed it, therefore, my duty to bestow the greatest
pains and most rigorous analysis in the examination of the
evidence in this case; and yet it may be that, after all, the
court has, because of the fallibility of human judgment, aided
in fastening a fraud upon the record and assisted in the dis-
honest diversion of the estate of decedent. But as I have
reviewed the premises, line by line and letter by letter, I can
perceive no reason upon all the facts in evidence to sustain
the contest, and, therefore, order judgment for defendant.
In the Matter of the Adoption op MARY REICHLE, a
Minor.
Adoption of Minor — Petition, Covenant and Order. — In thi3 case
are set forth in full a petition for the adoption of a minor, the writ-
ten consent of the institution having the child in custody, the cove-
nants of the adopting parents and the order of the court authorizing
the adoption.
To the Hon. J. V. Coffey, Judge of the Superior Court of
said City and County, Department No. 9 of said Court :
The petition of James T. Hume and Louise Hume, his wife,
respectfully shows:
That they are husband and wife, and are residing together,
in said city and county.
That both of your petitioners are over the age of thirty
(30) years and have no children or child of their own.
2^0 Coffey's Probate Decisions, Vol. 5.
That they are desirous of adopting a child, named Mary
Reichle, now aged seven years and about two months, and
the daughter of Charles Reichle and Mary Reichle and born
to them in lawful wedlock.
That said child is now and for more than one year last
past has been an inmate of and in the care of the asylum in
said city and county, called "Little Sisters Infant Shelter,''
a duly organized and incorporated asylum or place of shelter
for helpless children of tender years, under the law of Cali-
fornia.
That Charles Reichle, the father of said child, Mary Reichle,
was, on the 18th of June, 1887, adjudged and declared
to be insane by this honorable court, and sent to the State
Insane Asylum at Stockton, this state; that he remained tliere
until the 25th of November, 1888, when he was transferred
to the State Insane Asylum at Agnew, Santa Clara county,
this state, where he now is a hopeless, demented, or utterly
incompetent person.
That the mother of the child, Mary Reichle, took charge of
said child after the father was adjudged insane and sent to
Stockton as aforesaid and maintained her until the 16th of
December, 1892, when she put her, the child, in charge of
said "Little Sisters Shelter," where she has ever since been.
That the mother, neither at that time nor since, paid any-
thing to said Shelter toward the expenses of the maintenance
of said child; nor has she been near the child since she left
her in charge of said Shelter ; nor has she been seen, or heard
of or from, since the sixteenth day of December, 1892; but,
as yonr petitioners are informed and believe, she, at that time,
or about that time, left the state of California and went to
parts unknown.
That the officers and managers of said "Little Sisters In-
fant Shelter" 1 consent to said proposed adoption by your peti-
tioners.
Thai your petitioners are ready and willing to sign an
agreement that the said Mary Reichle, minor, shall be adopted
by them, and treated in all respects as their own child should
be treated, and are desirous that the said child shall take the
family name of your petitii '.i<>rs, and shall, when adopted, be
known by the name of "May Violet Hume."
In re Reichle. 221
Wherefore your petitioners pray that your honor will make
an order declaring that the said Mary Reichle shall hence-
forth be regarded and treated in all respects as the child of
your petitioners, and that said child be henceforth known by
the name of May Violet Hume; in accordance with the pro-
visions of chapter 11, title 11 of the Civil Code of the state
of California.
JAMES T. HUME.
LOUISE HUME.
State of California,
City and County of San Francisco, — ss.
James T. Hume and Louise Hume, being severally duly
sworn, depose and say that they are the petitioners named in
the foregoing petition; that they have heard read the above
and foregoing petition and know the contents thereof; that
the same is true of their own knowledge, except as to the mat-
ters which are therein stated on their information or belief,
and as to those matters, that they believe it to be true.
JAMES T. HUME.
LOUISE HUME.
Subscribed and sworn to before me this 29th day of De-
cember, 1893.
G. W. F. COOK,
Justice of the Peace of the City and County of San Fran-
cisco.
HOME OF LITTLE SISTERS INFANT SHELTER.
San Francisco, January, 1894.
Whereas, on the 16th of December, 1892, a child was placed
in the Home of the Little Sisters Infant Shelter, this city of
San Francisco, by a woman who claimed to be its mother, and
who gave the name of the child as Mary Richley or Reichle,
and claimed to be herself, Mrs. Charles Richley or Charles
Reichle. She brought no clothing with the child beyond the
clothes the child at the time wore, which were very poor in
quality and very limited in amount ; and
Whereas this shelter has never, since the last-mentioned
day, heard of, or from, the woman, the reputed mother of the
222 Coffey's Probate Decisions, Vol. 5.
child, except to hear from some of the acquaintances of the
woman that she had not been seen or heard of in San Fran-
cisco since about that time; and whereas the child has out-
grown the advantages and facilities of the shelter, being, ac-
cording to the mother's statement, about six years old when
placed here, and having been here ever since; and whereas
Mr. James T. Hume and his wife, Louise Hume, are desirous
to adopt the child, and they, it appears, are worthy people
and in every way competent to receive said child in adoption.
Therefore resolved by the Board of Directors, here present,
this day, that the consent of this shelter be, and hereby is,
accorded to them for the adoption of said child, Mary Rich-
ley, or Mary Reichle, and further resolved, that Mrs. H. N.
Tilden, recording secretary of the board be, and hereby is.
empowered to appear before any judge, before whom the pro-
ceedings for the adoption of said child may be had, and cer-
tify such consent of the Little Sisters Infant Shelter to the
adoption of said child by said James T. Hume and Louise
Hume, his wife.
Mrs. WILL E. FISHER,
President.
Mrs. H. N. TILDEN,
Recording Secretary.
In the Superior Court of the City and County of San Fran-
cisco, State of California.
In the Matter of the Adoption of MARY REICHLE, a
Minor.
Know all men, that we, James T. Hume and Louise Hume,
his wife, of said city and county of San Francisco, state of
California, in consideration of the making of an order by the
I lun. J. V. Coffey, Judge of said court, declaring that Mary
Reichle, the infant daughter of Charles Reichle and Mary
Reichle, his wife, may be adopted by us, as our child, in ac-
cordance with the provisions of chapter 11 of title 11 of the
Civil (ode of California, and for other valuable and Buffi-
cient considerations moving us hereunto, do hereby covenant
with the said Mary Reichle, and agree that she, said Marj
In re Reichle. 223
Reichle, shall be by us adopted as our child, and shall be
treated by us in all respects as our own lawful child should
be treated ; and we hereby covenant and agree with the said
Charles Reichle and Mary Reichle, his wife, the parents of
said Mary Reichle, said minor, that they shall henceforth be
relieved of all parental duties toward, and all responsibility
for the maintenance and support of the said Mary Reichle,
said minor.
In witness whereof, we have hereunto set our hands and
seals this eighteenth day of January, A. D. 1894.
JAMES T. HUME. [Seal]
LOUISE HUME. [Seal]
Witness: Moses G. Cobb.
In the Superior Court of the City and County of San Fran-
cisco, State of California.
In the Matter of the Adoption op MARY REICHLE, a
Minor.
Know all men by these presents, that the "Little Sisters
Infant Shelter," of the city and county of San Francisco,
State of California, an asylum for the care and protection of
children of tender years, duly incorporated and organized
under the laws of the state of California, by Mrs. H. N. Til-
den, its recording secretary, hereto duly authorized by a reso-
lution of the Board of Directors of said "Shelter," a copy of
which is herewith submitted, and which "Shelter" has cared
for, protected and maintained an infant child, reputed to be
now about seven years and two months old, called Mary
Reichle, since the sixteenth day of December, 1892, in the
home of said "Shelter" in said city and county, without any
assistance, pecuniary or otherwise, from either of its parents,
or any other source outside, or independent of said "Shelter,"
does hereby consent and agree, in pursuance of said resolu-
tion, that said infant child, Mary Reichle, the reputed daugh-
ter of one Charles Reichle, and Mary Reichle, his wife, both
lately of said city and county, may be adopted by James T.
Hume and Louise Hume, his wife, of said city and county, as
their child, and such order be made by the Hon. J. V. Coffey,
224 Coffey's Probate Decisions, Vol. 5.
Judge of said court, as may be necessary, legally to effect such
adoption, in accordance with the provisions of chapter 11,
title 11 of the Civil Code of the State of California.
In witness whereof, the said "Little Sisters Infant Shel-
ter's" name is hereto subscribed, and its seal (common seal
having no corporate seal) hereto set, by its recording secre-
tary, Mrs. H. N. Tiklen, hereunto duly authorized by the reso-
lution above mentioned, this eighteenth day of January, eight-
een hundred and ninetj'-four.
LITTLE SISTERS INFANT SHELTER. [Seal]
By Mrs. H. N. TILDEN,
Recording Secretary.
"Witness: Moses G. Cobb.
In the Superior Court of the City and County of San Fran-
cisco, State of California.
In the Matter of the Adoption of MARY REICHLE, a
Minor.
Order Authorising the Adoption of Minor, etc.
The petition of James T. Hume and Louise Hume, his wife,
praying for an order, that they may be permitted to adopt
as their child the above-named Mary Reichle, in accordance
with the provisions of chapter 11 of title 11 of the Civil
Code of this state, coming on regularly to be heard, at this
day; the above-named James T. Hume and Louise Hume,
the above-named minor, Mary Reichle, and Mrs. Caroline M.
Olney and Mrs. H. N. Tilden, the president and secretary
of the "Little Sisters Infant Shelter," appeared before the
judge of this court, department No. 9, at the courtroom of
said court, New City Hall, in said city and county, and each
of them were separately examined by said judge, the said
itioners and officers of said "Shelter" — under oath in re-
LatioD to the matters alleged in said petition.
And it appearing from said examination to the satisfaction
of said judge, that said James T. Hume and Louise Hume,
his wife, ate residents of said city and county; that they are
both over the age of thirty (30) years, and are respectively
In re Reiciile. 225
more than ten years older than the child, Mary Reichle; that
the age of said child is seven years and about two months;
that she is the daughter of Charles Reichle, who is an incom-
petent person, and now confined at the State Insane Asylum
at Agnew, Santa Clara county, an asylum for the hopeless
insane, and of Mary Reichle, his wife, who is not now a resi-
dent of this state, but is in parts unknown; that the officers
and managers of the "Little Sisters Infant Shelter," an asy-
lum, incorporated and organized under the laws of this state,
for the protection and shelter of infant children, which has
had the care and maintenance of said child, for more than
one year now last past consent to the adoption of said child
by said James T. Hume and Louise Hume, his wife ; that said
James T. Hume and his wife are of high respectability and
ample means, and have no children of their own; and being
further satisfied, that the interests of said child will be pro-
moted by its adoption as prayed for in said petition ; there-
fore,
It is hereby ordered that, said Mary Reichle, infant child
of said Charles and Mary Reichle, may be adopted, as the
child of said James T. Hume and Louise Hume, his wife ;
that said child, Mary Reichle, henceforth, be regarded and
treated in all respects as their child; that it be henceforth
known by the name of May Violet Hume, and that the parents
of said child be henceforth relieved of all parental duties
toward, and all responsibility for, the said child, and have
no right whatever over it.
Dated, January 18, 1894.
J. V. COFFEY,
Judge.
Prob. Dec, Vol. V — 15
226 Coffey's Probate Decisions, Vol. 5.
In the Matter of the Adoption of LILLIE DALE, a
Minor.
Adoption — Petition, Consent, and Order of Court. — In this case are
Bet forth in full the petition for the adoption of a minor, the consent
of the father, the agreement by the petitioners, and the order of
court.
Petition for Adoption.
To the Honorable James V. Coffey, as Judge of the above-
entitled Superior Court.
The petition of Wm. J. Dale and Eliza Jane Dale, his
wife, for the adoption of the above-named minor, respectfully
shows : That your petitioners are husband and wife, having
intermarried on the thirteenth day of August, 1894, at the
city of Philadelphia, Pennsylvania. That your petitioner,
William J. Dale, is aged thirty years and upward, and has
resided in the above-named city and county of San Francisco,
continuously and uninterruptedly for nine years last past,
and .your petitioner, Eliza Jane Dale, is aged thirty years
and upward, and is a resident of and has resided for nine
years last past in the aforesaid city and county of San Fran-
cisco. That the above-named minor is a female child of the
age of two years and upward, being born on or about Janu-
ary 25, 1892, and your petitioner and each of your petitioners
is more than ten years older than the said minor; that said
minor is a resident of the aforesaid city and county of San
Francisco, and has been since January 25, 1892. That Jane
Dale, the mother of said child died in the city and county of
San Francisco, on January 28, 1892. That James Dale, the
father of said child, resides in the said city and county of
D Francisco, and gives his consent to the adoption of said
minor by your petitioner. That it is for the best interests
and welfare of said minor, that your petitioners adopt her;
that the said minor is the niece of your petitioner, Will-
iam J. Dale, the father of said minor being said petitioner's
brother. That your petitioners are well able and anxious to
care for, maintain and educate the said minor, and are will-
ing and anxious, each and both of them, to adopl the said
minor and to treat the said minor in all respects as if the said
In re Dale. 227
minor was the lawful child of each and both of them, and as
such lawful child should be treated ; and your petitioners are
willing and anxious that the said minor when adopted should
take the family name of each and both of them, and should
sustain toward each and both of petitioners the relation of
child, and have all the rights and be subject to all the duties
of that relation ; and your petitioners, each and both of them,
should sustain upon and after such adoption, toward the said
minor, the relation of parent, and have all the rights and be
subject to all the duties of that relation ; and your petitioners,
each and both of them, hereby agree to all and singular the
matters and things set forth and promised hereinabove, and
to the legal effect and consequences of the same. "Wherefore,
your petitioners, each and both of them, pray that your honor,
and as judge aforesaid, upon examination of the matter as.
required by law, make an order that the above-named child
and minor may be adopted, and be thereby declared adopted
by your petitioners and each of them, and that the said child
shall henceforth be regarded and treated in all respects as
the child of the person and persons adopting, to wit; as the
child of your petitioners, and that said child take the family
name, to wit, Dale, and be thenceforth known as Lillie Dale,
the child of William J. Dale and Eliza Jane Dale, your peti-
tioners aforesaid.
Wednesday, April 25, 1894.
WM. J. DALE.
ELIZA JANE DALE.
Witness: W. E. White.
228 Coffey's Probate Decisions, Vol. 5.
In the Superior Court in and for the City and County of San
Francisco, State of California — Department Nine — Pro-
bate.
In the Matter of the Adoption of LILLIE DALE, a
Minor.
State of California,
City and County of San Francisco, — ss.
Consent of Father.
James Dale, being first duly sworn, deposes and says that
he is the father of said minor child, Lillie Dale; that he re-
sides in said city and county, and that the said child is a
girl of two years old; that the mother of said child is dead;
that William J. Dale is the uncle of said child ; that said Will-
iam J. Dale and Eliza Jane Dale, his wife, desire to adopt
said minor as their own child, and deponent hereby consents
to said adoption. JAMES DALE.
Witness: W. E. White.
Subscribed and sworn to before me this 25th day of April,
1894. J. V. COFFEY,
Judge.
In the Superior Court, in and for the City and County of
San Francisco, State of California — Department Nine —
Probate.
In the Matter of the Adoption of LILLIE DALE, a
Minor.
Agreement of Adoption by Petitioners.
We, the undersigned, the petitioners who have presented
and signed Hie above petition for adoption, make the follow-
ing agreement for the purpose of complying with the stat-
utes as to the adoption, and being bound thereby, and there-
Ion' we, and each of us, agree that the child above named,
to wit, Lillie Dale, shall bo adopted by us and each of us in
all respects as our child and the child of each of us should be
In re Dale. 229
treated; and further that an order of adoption may be made
by the judge as prescribed by law and prayed for herein-
above, and that upon such order being made the legal conse-
quences provided by the statutes of adoption, and set forth
in the prayer to the petition hereinabove, shall follow; and
that the child take the family name of the undersigned, to
wit, the family name of Dale.
Wednesday, April 25, 1894, 3 o'clock, P. M.
WILLIAM J. DALE.
ELIZA JANE DALE.
Witness : W. E. White.
Witness: J. V. Coffey.
In the Superior Court, in and for the City and County of
San Francisco, State of California.
In the Matter of the Adoption of LILLIE DALE, a
Minor— No. 137.
Order of Adoption.
In the above-entitled matter a petition for adoption of the
above-named minor having been presented by Wm. J. Dale
and Eliza Jane Dale, husband and wife; and the said peti-
tioners and the said minor and all persons whose consent is
necessary having appeared before the undersigned judge of
the superior court of the county where the person and per-
sons adopting, to wit, said petitioners, reside, the necessary
consent being thereupon signed and an agreement having
been executed by the said adopting persons and petitioners,
to the effect that the child shall be adopted and treated in all
respects as their and each of their own lawful child should
be treated. And the undersigned, as judge of the above
court, having examined the persons appearing as aforesaid,
each separately, and upon and after such examination, being
satisfied that the interests of the child, the aforesaid minor,
will be promoted by the adoption; and all and singular the
facts set forth in the petition for adoption being established
as true, to my satisfaction ; and the said child and the peti-
tioners being all residents of this city and county and state,
and the persons adopting being each and both more than ten
230 Coffey's Probate Decisions, Vol. 5.
years older than the person adopted. It is therefore hereby
ordered, that the said minor child, Lillie Dale, be and she is
hereby declared adopted by the said petitioners, William J.
Dale and Eliza Jane Dale, as the child of each and both of
them; and that the said child shall henceforth be regarded
and treated in all respects as the child of each and both of
them, and that the said child and the said "William J. Dale
and Eliza Jane Dale shall sustain toward each other the legal
relation of parent and child, and have all the rights and be
subject to all the duties of that relation; and that the said
child take the family name of the said persons adopting, to
wit, Dale, and be henceforth known as "Lillie Dale," the
child of each and both of said persons adopting.
Dated, San Francisco, April 25, 1894.
J. V. COFFEY,
Judge.
In the Matter of the Adoption of ADELAIDE GRIFFIN,
a Minor.
Adoption — Petition, Consent, Agreement, and Order of Adoption. —
In this case are set forth in full the petition for the adoption of a
minor, the consent of the surviving parent, the agreement of the
adopting parents, and the court's order of adoption.
Petition for Adoption.
To the Honorable Superior Court of the City and County of
San Francisco, State of California.
The petition of James A. Bohan and Ann Bohan, his wife,
for t he adoption of the above-named minor respectfully
show
Thai Ihey are now and for fifteen years last past have been
husband and wife, and during all of said period have been
and are now residents of said city and county. That they
are now and during all of said period have lived together as
In band and wife at their home, No. 921 Howard street, in
said city and county.
That said Adelaide Griffin is a female child and was born
i.i said city and county on July 20, 1890, and ever since
In re Griffin. 231
August 17, 1S90, has resided with and been cared for by
your petitioners at their home.
That each of your petitioners is more than ten years older
than said child.
That the parents of said child were Wellington A. Grif-
fin, who now resides in said city and county, and Katie T.
Griffin (daughter of petitioner, Ann Bohan), who died in
said city and county on the fourteenth day of August, 1890.
That since her death your petitioners have had the legal
custody, care, and control of said minor by and with the
consent of her father, Wellington A. Griffin. That said father
is willing, and even desirous, that said child should be adopted
by your petitioners.
That your petitioner, Ann Bohan, is the grandmother of
said child.
That it is for the best interest and welfare of said child
that your petitioners adopt her. That her said father has
not contributed anything toward her support since April,
1892. That said father of said child married again in the
month of May, 1892, and is now living with his second wife
in said city and county.
That he is willing that said petitioners should adopt said
minor.
That your petitioners are well able and anxious to care
for and maintain and educate said minor and to adopt said
minor and to treat said minor in all respects as if the said
minor was the lawful child of said petitioners. That they
are willing that said minor when adopted should take the
family name of each and both of them, and should sustain
toward petitioners the relation of child and have all the
rights and be subject to all the duties of that relation and
your petitioners are willing to sustain to said child, after
adoption, the relation of parents and have all the rights and
be subject to all the duties of that relation, and said peti-
tioners hereby agree to all the foregoing matters, promises
and legal consequences of the same.
Wherefore, your petitioners pray that your Honor make
an order that the above-named minor may be adopted and be
thereby declared adopted by your petitioners; and that said
232 Coffey's Pkobate Decisions, Vol. 5.
child shall thenceforth be regarded and treated in all respects
as the child of said petitioners and that said child take their
family name, to wit, Bohan, and be thenceforth known as
Adelaide Bohan, child of James A. Bohan and Ann Bohan,
petitioners herein.
Dated at San Francisco, October 10, 1893.
ANN BOHAN,
921 Howard St., San Francisco,
J. A. BOHxiN,
921 Howard St., San Francisco, California.
Witness: W. F. Stafford.
Agreement of Adoption.
"We, the undersigned, the petitioners who have presented
and signed the above petition for adoption, make the follow-
ing agreement for the purpose of complying with the statutes
as to adoption, and being bound thereby, and therefore we
and each of us agree that the child above named, to wit, Ade-
laide Griffin, shall be adopted by us and each of us, and
treated by us and each of us in all respects as our child and
the child of each of us should be treated ; and further that an
order of adoption may be made by the judge as prescribed by
law and prayed for hereinabove, and that upon such order
being made the legal consequences provided by the statutes of
adoption, and set forth in the prayer to the petition herein-
above, shall follow; and that the child take the family name
of the undersigned, to wit, the family name of Bohan.
Dated, October 10, 1893.
ANN BOHAN.
J. A. BOHAN.
Witness: W. F. Stafford.
In re Griffin, 233
In the Superior Court of the City and County of San Fran-
cisco, State of California.
In the Matter of the Adoption of ADELAIDE GRIFFIN,
Minor.
Consent of Surviving Parent.
To the Honorable Superior Court of the City and County of
San Francisco, State of California :
I, Wellington A. Griffin, father of Adelaide Griffin, a minor
of three years of age and upward, do hereby give my consent
to the adoption of my said child, Adelaide Griffin, by James
A. Bohan and Ann Bohan, and I hereby respectfully request
that said superior court make an order herein permitting
them to adopt my said child.
Dated at San Francisco, October 10, 1893.
WELLINGTON A. GRIFFIN,
Father of Adelaide Griffin.
Witness: W. F. Stafford.
In the Superior Court of the City and County of San Fran-
cisco, State of California.
In the Matter of the Adoption of ADELAIDE GRIFFIN,
Minor— No. 126.
Order Declaring Adoption of Minor.
In the above-entitled matter a petition for adoption of the
above-named minor having been presented by James A. Bo-
han and Ann Bohan, husband and wife ; and the said peti-
tioners and the said minor and all persons whose consent is
necessary having appeared before the undersigned judge of
the superior court of the county where the person and persons
adopting, to wit, said petitioners, reside, the necessary consent
being thereupon signed and an agreement having been exe-
cuted by the said adopting persons and petitioners, to the
effect that the child shall be adopted and treated in all re-
spects as their and each of their own lawful child should be
treated.
And the undersigned, as judge of the above court, having
examined the persons appearing as aforesaid, each separately,
234 Coffey's Probate Decisions, Vol. 5.
and upon and after such examination being satisfied that the
interests of the child, the aforesaid minor, will be promoted
by the adoption, and all and singular the facts set forth in the
petition for adoption being established as true to my satisfac-
tion, and the said child and the petitioners being residents of
this city and county and state, and the persons adopting being
each and more than ten years older than the person adopted.
It is therefore hereby ordered, that the said minor child,
Adelaide Griffin, be and she is hereby declared adopted by the
said petitioners, James A. Bohan and Ann Bohan, as the child
of each and both of them ; and that the said child shall hence-
forth be regarded and treated in all respects as the child of
each and both of them, and that the said child and the said
James A. Bohan shall sustain toward each other the relation
of parent and child, and have all the rights and be subject to
all the duties of that relation ; and that the said child and the
said Ann Bohan shall sustain toward each other the legal rela-
tion of parent and child, and have all the rights and be subject
to all the duties of that relation; and that the said child take
the family name of said persons adopting, to wit, Bohan, and
be henceforth known as "Adelaide Bohan," the child of
each and both of said persons adopting.
J. V. COFFEY,
Judge of the Superior Court.
Dated, San Francisco, November 2, 1893.
In re Burton. 235
ELIZABETH LULL COCHRANE and EICHARD SWAN
LULL, v. J. WADE McDONALD, J. S. CALLEN
MARIA A. BURTON, HENRY H. BURTON, Adminis-
trator of the Estate op HENRY S. BURTON, De-
ceased, ET AL.
[No. 44,368; decided Jan. 22, 1895.]
Court — Exclusive Jurisdiction of First Court. — When any court has
acquired jurisdiction of the parties to and the subject matter of an
action, whatever may be the nature of the proceedings or the subject
matter thereof, the jurisdiction thus acquired is exclusive, and no
other court of co-ordinate jurisdiction can, in any form, review, re-
verse, nullify, restrain, or in any way control any of the orders, judg-
ments, proceedings or process of the first court.
Court — Exclusive Probate Jurisdiction. — The superior court sitting
in probate has full jurisdiction to hear and determine every matter
necessary or proper in the proceeding.
Court — Conclusiveness of Orders in Probate. — All final orders or
judgments of the probate branch of the superior court in one county
are conclusive and binding upon all persons and upon all other courts
and tribunals, including the superior court of another county.
Bill of Review — Court in Which must be Brought. — A suit analogous
to a bill in the nature of a bill of review can be brought only in the
court wherein the judgment or order complained of was made or
rendered.
Suit in equity to set aside proceedings in probate. There
was a demurrer to the bill on the ground of want of equity
and of lack of jurisdiction.
W. J. Hunsaker, for the demurrer.
Joseph M. Nougues, contra.
COFFEY, J. This is a suit in equity brought by the plain-
tiffs as heirs at law of General Henry S. Burton, deceased, for
the purpose of having certain stipulations entered into be-
tween the plaintiffs, by their attorneys, J. S. Callen, Mrs. Mc-
Nealy, formerly Maggie Leach, and the other defendants, as
to certain proceedings in the superior court of the county of
San Diego in the matter of the estate of General Burton, and
236 Coffey's Probate Decisions, Vol. 5.
the orders made by that court in pursuance of such stipula-
tions, annulled and set aside; restoring the plaintiffs to the
position in which they were before the making of such stipu-
lations, and the entry of such orders ; vacating and annulling
all orders made by denying motions for a new trial, or with-
drawing the same; enjoining the defendants, other than Dore
and McNealy, from applying for or recovering payment of
any sums allowed as counsel fees, administrator's commissions
and widow's allowance; restraining Henry S. Burton, as ad-
ministrator, from paying over to either of the defendants any
portion of the money received by him from the sale of the
Jamul Rancho, and for general relief.
The complaint, as grounds for equitable relief, alleges that
the widow, administrator, and certain of the defendants, for
the purpose of having exorbitant sums allowed as counsel
fees, administrator's commissions, and family allowance,
caused an appraisement to be filed in w T hich the Rancho
Jamul was fraudulently overvalued ; that the superior court
of San Diego county allowed excessive and unreasonable sums
for attorney's fees; that, in pursuance of a fraudulent com-
bination between the widow, administrator and certain of the
defendants (one of whom was the attorney for the plaintiffs),
the stipulations sought to be annulled were entered into; that
the plaintiffs, although they did not prepare any bill of ex-
ceptions, or put themselves in a position to have the action
of the court, making the several allowances reviewed, have a
right to the benefit of the proceedings taken for that purpose
by Mrs. McNealy, formerly Maggie Leach.
The defendants other than Mrs. McNealy and Maurice
Dore have filed amended demurrers assigning as grounds of
demurrer that the complaint does not state facts sufficient to
constitute a cause of action, and that this court has no juris-
diction of the subject matter of the action.
The superior court of San Diego county has exclusive
jurisdiction of the administration of the Estate of Henry S.
Burton, deceased: Code Civ. Proc, sees. 121)4, 1295.
The superior court of San Diego county having acquired
jurisdiction of the persons and subject matter thereof before
the commencement oi* this ad ion, the superior court of the
In re Burton. 237
city and count}' of San Francisco has no jurisdiction to re-
view, set aside, or enjoin any judgment, order or proceeding
given, made, or had, by or in, the superior court of San
Diego county in or about the administration of said estate.
It is a well-settled rule that when any court has acquired
jurisdiction of the parties to, and subject matter of, an ac-
tion, whether the subject matter be probate, law or equitable
cognizance, or a special proceeding, the jurisdiction thus ac-
quired is exclusive, and no other court, of co-ordinate juris-
diction only, can, in any form, review, reverse, nullify, re-
strain, or, in any way, control, any of the judgments, orders,
proceedings, or process of the court first acquiring jurisdic-
tion: Civ. Code, sec. 3423, subd. 1; Spelling on Extraordi-
nary Relief, p. 96, note 2; High on Injunctions, sec. 265;
Anthony v. Dunlap, 8 Cal. 26 ; Rickett v. Johnson, 8 Cal. 34 ;
Revalk v. Kraemer, 8 Cal. 66-71, 68 Am. Dec. 304 ; Chipman v.
Hibbard, 8 Cal. 268-271 ; Phelan v. Smith, 8 Cal. 521 ; Gorham
v. Toomey, 9 Cal. 77 ; Uhlfelder v. Levy, 9 Cal. 608-614 ; Crow-
ley v. Davis, 37 Cal. 268; Flaherty v. Kelly, 51 Cal. 145
Judson v. Porter, 51 Cal. 562; Wilson v. Baker, 64 Cal. 475
2 Pac. 253; Brooks v. Delaplaine, 1 Md. Ch. Dec. 272 (351)
Brown v. Wallace, 4 Gill & J. (Md.) 479-496; Withers v
Denmead, 22 Md. 135; Jenkins v. Simms, 45 Md. 532-537
Platto v. Deuster, 22 Wis. 460 (482) ; Orient Ins. Co. v
Sloane, 70 Wis. 611, 36 N. W. 388 ; Coon v. Seymour, 71 Wis
340, 37 N. W. 243; Cardinal v. Eau Claire Lumber Co., 75
Wis. 427, 44 N. W. 761 ; Dodge v. Northrup, 85 Mich. 243, 48
N. W. 505 ; Griffin v. Birkhead, 84 Va. 612, 5 S. E. 685-687 ;
Gilbert v. Renner, 95 Mo. 151, 7 S. W. 479 ; Bank v. Railroad
Co., 28 Vt. 470-477 ; Stearns v. Stearns, 16 Mass. 170 ; Home
Ins. Co. v. Howell, 24 N. J. Eq. 239; Mason v. Piggott, 11
111. 88 ; Peck v. Jenness, 7 How. 624, 12 L. Ed. 846 ; Randall
v. Howard, 2 Black, 585, 17 L. Ed. 269-271 ; Taylor v. Tain-
tor, 16 Wall. 370, 21 L. Ed. 290; Nougue v. Clapp, 101 U. S.
551, 25 L. Ed. 1026 ; Sharon v. Terry, 36 Fed. 337, 13 Saw.
387, 11 L. R. A. 572. See, also, Freeman on Judgments, 4th
ed., sec. 118a, and the last paragraph of section 485;
Guardianship of Danneker, 67 Cal. 643, 8 Pac. 514.
The superior court, while sitting in matters of probate, has
full jurisdiction to hear and determine every matter neces-
238 Coffey's Probate Decisions, Vol. 5.
sary or proper in the proceeding: In re Burton, 93 Cal.
464-465, 29 Pae. 36; Pennie v. Poach, 94 Cal. 521, 29 Pac.
956, 30 Pac. 106 ; Finnerty v. Pennie, 100 Cal. 404, 34 Pac.
869 ; In re Moore, 96 Cal. 522, 31 Pac. 584.
And all final judgments or orders of the superior court of
San Diego county are and will be conclusive and binding
upon all persons and all other courts and tribunals whatso-
ever: Sharon v. Sharou, 84 Cal. 430, 431, 23 Pac. 1100, and
authorities there cited.
This is a suit analogous to a bill in the nature of a bill of
review, and such a suit must always be brought in the court
in which the judgment or order complained of was made
or rendered: Story's Equity Pleading, sec. 403; Beach on
Modern Equity Practice, sec. 863, notes 2, 3 and 4; Hurt v.
Long, 90 Tenn. 445, 16 S. W. 968, 969 ; Fenske v. Kluender,
61 Wis. 602, 21 N. W. 796-798.
The superior court of San Diego county, in the exercise of
its probate jurisdiction, had full power and authority to
make every order complained of by the plaintiffs, and if such
orders were made in pursuance of stipulations or other acts
on the part of the attorney for the Lulls, in excess of his
powers as such attorney, the plaintiff either had actual
knowledge, or knowledge of facts from which constructive
knowledge of such acts on the part of their attorney is im-
puted to them, and within time sufficient to have enabled
them to move for relief under the provisions of section 473
of the Code of Civil Procedure, and failing in that, they can-
not be relieved in equity : Hope v. Jones, 24 Cal. 93, 94 ; Gur-
nee v. Maloney, 38 Cal. 87-89, 99 Am. Dec. 357 ; In re Grif-
fith, 84 Cal. 107-112, 23 Pac. 528, 24 Pac. 387; Dougherty v.
Bartlett, 100 Cal. 496-499, 35 Pac. 431; Wiggin v. Superior
('.nut, 68 Cal. 398, 9 Pac. 646; Tobelman v. Hildebrandt,
72 Cal. 313-316, 14 Pac. 20.
The complaint does not state facts sufficient to constitute a
cause of action, for the reason, among others, that, if the
pr;iyer of the complaint were granted, the plaintiffs would not
be enabled thereby to present on appeal to the supreme court
the question which liny seek to have reviewed. A court of
equity will not do. or att< mp1 to do a vain thing. It will only
act where it cau afford to the parties some substantial relief.
In re Burton. 239
The complaint shows that the plaintiffs did not prepare a bill
of exceptions, or otherwise put themselves in a position to
have the action of the superior court reviewed upon appeal,
but the complaint is framed upon the theory that the plain-
tiffs, but for the stipulation, would have been entitled to avail
themselves of the use on appeal of the bill of exceptions pre-
sented by Mrs. McNealy. A recent decision of the supreme
court of this state disposes of this theory of the plaintiffs
adversely to their contention : Houghton v. Trumbo, 103 Cal.
239, 37 Pac. 152.
Demurrer sustained.
Additional Observations.
The complaint, according to the allegations thereof, is
grounded in fraud; and the fraud asked to be relieved
against affects certain judicial proceedings, as well as various
proceedings of the parties interested, had and taken in the
matter of the estate of Henry S. Burton, deceased, the ad-
ministration of which is still pending before the superior
court of San Diego county, the proper and domiciliary forum
for such administration.
The proceedings attacked in the complaint or bill are not
alleged to be void on their face, or to have been made or had
in the administration without jurisdiction in the court or in
the premises; but the entire infirmity of the matters chal-
lenged rests upon certain acts of the administratrix as such
and in her individual right as heir, and her attorneys, and the
attorneys for the plaintiffs in this action.
The complaint is very voluminous, comprising over fifty
typewritten pages, but the substance of it is that the widow
of decedent willfully omitted from the records of the ad-
ministration for a long period of time the fact of plaintiff's
heirship ; that after such heirship was entered in the records
the said widow, who was also administratrix of the estate,
did, with the confederation of her attorneys, conspire to have
excessive sums allowed for family allowance and attorneys'
fees for the purpose of procuring a sale of the decedent's
property and rendering valueless the interest of the plaintiffs
as heirs at law. It is alleged that an over-valuation of the
estate was procured for the purpose of securing a large
2-40 Coffey's Probate Decisions, Vol. 5.
family allowance and large attorneys' fees; that such purpose
was successful and the allowances made were excessive.
It is also alleged that an attorney appeared in the estate on
behalf of the plaintiffs here, under authority given through
misleading statements and promises held out to the plain-
tiffs ; but that subsequently the authority w r as in fact revoked
(although such attorney continued to act concerning the in-
terests of plaintiffs with their knowledge). It is further al-
leged that an order of sale of estate's property was made in
the administration, and that certain others of the heirs at
law, including plaintiff (through said attorney), appealed
therefrom, and thereafter such appeal was dismissed by
stipulation upon consideration of a modification of the order
of sale, but that such agreed modification did not advantage
these plaintiffs, but only the other heirs at law, who had ap-
pealed; in all of which matters the attorney representing the
plaintiffs disregarded the interest of his clients and looked
only to the procurement of an excessive allowance by the
court in his own favor for attorneys' fees, which were estab-
lished against the estate as an expense of administration.
(The appearance of plaintiffs in person or by attorney in the
administration was unnecessary to the jurisdiction therein ;
the court's decrees would be equally efficacious whether plain-
tiffs were known or unknown, or appeared or failed to ap-
pear.)
It is finally alleged that a sale of the estate's property is
about to be proceeded with under the modified and amended
order of sale, and that a vacation of such order and of the
family allowance and allowances of attorneys' fees, and
stipulation on appeal and all orders in the premises can be
made without injury to the interests of the various parties
such interests existed previous to the doing of the aforesaid
arts in the administration. The prayer of the complaint is in
express terms that all such orders and acts in the administra-
tion be vacated, annulled and set aside, and the execution of
the order of sale be prevented, and that if a sale be consum-
mated, the fruits thereof be controlled by this action as
linst the administrator or other person interested in the
ite to whom the same or any part may come, and for
general relief.
In re Burton. 241
The relief asked — and this is the entire and ultimate relief
^concerns the administration of a decedent's estate, as to
which not only is this court void of jurisdiction, but such
jurisdiction is complete and existent in the superior court of
San Diego county to the exclusion of every other tribunal,
subject only to the ordinary review of the supreme court.
No other superior court of this state can interfere with the
superior court of San Diego county in the administration of
said estate, or of any act done, being done or to be done in
the matter of such administration. This results from two
principles : 1, That a court cannot restrain or interfere with
the acts of another court of co-ordinate jurisdiction ; 2. That
the jurisdiction of the San Diego court is exclusive in the
pi emises.
The first principle was settled before the codes, and has
been adopted into them. (Civ. Code, sec. 3423, subd. 1, and
Deering's note and citations; with sections 3384, 3420, 3421,
3422.) The second principle states itself and carries its own
conclusion.
Both these principles were announced and followed by this
department and judge in the matter of the estate of W. P.
Fuller, deceased, against an injunction of another depart-
ment issued in a civil action and running against an attorney
appointed in the administration to represent minor heirs.
The bill in this case is directed against an administration
of a decedent's estate, now pending — a judicial proceeding
in fieri — but even if it were assumed or claimed to attack
only judicial acts which had passed into judgment, and there-
fore as a suit to set aside or grant relief against a judgment
upon the ground of fraud, still the conclusion must be the
same. In the leading case of State v. McGlynn, 20 Cal. 233,
81 Am. Dec. 118 (affirmed in Broderick's Will, 21 Wall.
503, 22 L. Ed. 599), it was held that equity could not set
aside a decree admitting a will to probate; the jurisdiction
of the probate forum was special and exclusive, and the
remedy of parties interested was confined to the probate law
and jurisdiction (with the right of appeal when and where
given). The language of the opinion and the reasons stated
for the decision would apply to all decrees in probate (Crall
Prob. Dec, Vol. V— 16
242 Coffey's Probate Decisions, Vol. 5.
v. Poso Irr. Disk, 87 Cal. 140, 147, 148, 26 Pac. 797) and this
case has been many times followed and referred to by our su-
preme court. In the case at bar we believe the reasoning of
the McGlynn case particularly applicable from the fact that
all the acts complained of in the bill here are peculiarly
matter concerning the administration of the estate.
A distinction might be drawn between a decree in probate
which confessedly concerns only the administration of the
estate, and a decree which technically is a distribution of the
estate, and therefore ex vi termini implies that the adminis-
tration has been completed or satisfied. As to a decree of dis-
tribution it might be claimed that the ordinar} r rules as to
judgments in other special proceedings and in civil actions
should be applied as to which no opinion is necessary for the
case. But as to matters purely of the administration — those
various and numerous proceedings required to be had and ad-
judged as a part of the due administration and necessarily a
condition precedent to a distribution — they pointedly illus-
trate the inherent exclusiveness of the jurisdiction and func-
tions of probate tribunals, and would seem to forbid the
suggestion that they could be treated like ordinary final
judgments in civil actions. Indeed, if they could be so
treated, the character of probate decrees as proceedings in
rem binding on the whole world, would be destroyed.
Treating the bill (or that part of it which might be so
claimed) as if it were one to set aside an ordinary judgment
in personam, it cannot be said that the allegations clearly jus-
tify the exacting rule laid down in the leading case of United
States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, followed
in our own recent case of Pico v. Cohn, 91 Cal. 129, 133-135,
25 Am. St. Rep. 159, 25 Pac. 970, 13 L. R. A. 336.
Estate of Plumel. 243
In the Matter op the Estate of J. F. PLUMEL, Deceased.
Olograph — Aiding Date by Codicil. — Assuming that the printing of
the figures "190" in the date "January 12, 1904," vitiates an instru-
ment as an olograph, a codicil thereto written on the reverse side
of the paper entirely written, dated, and signed by the hand of the
testator remedies the defect.
In this ease two instruments written on different sides of
a single sheet of paper were offered for probate as the will
and codicil of the decedent. The will was entirely written,
dated, and signed by the hand of the decedent, with the
exception of the figures ' ' 190 ' ' in the year 1904, which figures
were printed. Upon the back of the same sheet of paper the
codicil was written, which complied with the legal require-
ments regarding olographic wills. It was in the following
form:
"CODICIL.
"Jan. 14, 1904.
"In case of railway or steamship disaster in which both
myself and wife should be killed, I will and bequeath all
property real or personal to my sisters resident in France,
share and share alike.
"J. F. PLUMEL."
P. A. Bergeret and W. I. Brobeck, for opponents.
H. W. Bradley and J. C. McKinstry, for proponent.
COFFEY, J. In this matter I have come to the conclu-
sion, after grave consideration, that this instrument should
be taken as a single proposition. As I have looked at the
decisions of the supreme court, it seems to me that we should
construe the will and codicil in such a case as one entire docu-
ment. The date of the codicil, taken in connection with the
preceding part or page — it is a single sheet, the will on one
side, the codicil following on the other side — should be con-
strued as the date of the will.
Now, the very word "codicil" implies an addition to the
former instrument, and the testator by executing this codicil
has in plain terms as possible set up not only the codicil, but
the will, which speaks as of the date of the codicil.
244 Coffey's Probate Decisions, Vol. 5.
It seemed to me that at the time of the submission of the case
the proponents were inclined to allow the will to be rejected,
but the court intimated that if it were possible to sustain
the two writings as a testamentary instrument the intention of
the testator ought to be carried out. Now, it is possible to
sustain the will and the intention of the testator can be
carried out. It is one complete paper and the tendency of the
supreme court decisions has been to maintain such an in-
strument. There is only one point against it, and that is
the extremely restricted interpretation of the statute — 1287
— which reads: The execution of the codicil referring to a
previous will has the effect to republish the will, as modified
by the codicil.
There is not any change in this codicil to the will, there is
not any modification, there is not any revocation; there is al-
together a confirmation of it.
In the first writing, where the day of January 12, 1904.
the "4" written, occurs: "In the event of our joint death in
railway or steamship accident, I hereby appoint as the joint
executors of my will E. Rochat and Louis Benard, both of
San Francisco."
"J. F. PLUMEL."
After that is the codicil, January 14, 1904, all written :
"In case of railway or steamship disaster in which both
myself and wife shall be killed, I will and bequeath all
property, real or personal to my sisters in France share and
share alike.
"J. F. PLUMEL."
If the word "will" includes "codicil," that publication
ni list comprehend and by implication incorporate another in-
b1 rument.
It seems to me that the term "codicil" in itself includes a
reference to the previous will. It cannot stand alone. If it
stands at all, it must stand by reason of its relation to the
teding instrument and therefore must be part of it.
Estate of Snook. 245
I shall sustain the will as a whole, the two writings constitut-
ing one testamentary paper.
Memorandum. — This case was carried to the supreme court
and affirmed: Estate of Plumel, 151 Cal. 78. Decided April
10, 1907.
Estate op CHARLES "W. SNOOK, Deceased.
[No. 8,337; decided September 20, 1897.]
Resulting Trust — Parol to Establish. — When real estate has been
conveyed by a deed reciting a consideration, parol evidence, in the
absence of fraud or mistake, is not admissible in behalf of heirs of
the grantor to show that a resulting trust arose in his favor.
The opinion in this case was destroyed in the great fire of
1906, but the point decided being an important one, the
syllabus above is now published, and the question is further
elucidated in the following note:
CREATION OF TRUSTS IN LAND BY PAROL.
Classes and Kinds of Trusts in General. — By an express trust in
land is meant one that is created by express agreement of the par-
ties: Learned v. Tritch, 6 Colo. 433; Oberlender v. Butcher, 67 Neb.
410, 93 N. W. 764. In England, before the adoption of the statute
of frauds in 1676, express trusts in land possessed the same force
and validity when created by parol, or, in other words, orally, as
when created in writing. By that act, however, in order that an ex-
press trust in land might be enforceable, it was made requisite that
it be manifested in writing. Only trusts by implication of law and
resulting trusts were excepted from this requirement. This statute,
in connection with quite similar exceptions, has been adopted in most
of the states of the Union, and in some of them the further require-
ment has been added that express trusts in land must not only be
manifested, but must also be created, in writing: See Learned v.
Tritch, 6 Colo. 433.
The class of trusts excepted from the requirement of writing has
been variously named in various jurisdictions as trusts by implica-
tion of law, trusts by operation of law, implied trusts, constructive
trusts, resulting trusts, or trusts arising or resulting by operation of
246 Coffey's Probate Decisions, Vol. 5.
law. In the light of judicial discussion of these terms it may now
be said that the phrases "trusts by implication of law," "trusts by
operation of law," "implied trusts," and "trusts arising or resulting
by operation of law" are all synonymous, and embrace all trusts
where a transaction of equitable cognizance is inseparably connected
with the creation of trust. The terms "constructive trusts" and
"resulting trusts," on the other hand, signify the two kinds of implied
trusts. (The question of terminology is somewhat discussed in Wood
v. Eabe, 96 N. Y. 414, 48 Am. Kep. 640, and by Brown, P. J., in
Hutchinson v. Hutchinson, 84 Hun, 482, 32 N. Y. Supp. 390.)
A resulting trust is one which results from the conduct and rela-
tion of the parties to a transfer of land, independently of any agree-
ment whatsoever between them: Learned v. Triteh, 6 Colo. 433. It
is a pure creation of equity to promote what is conceived by the law
to be good faith between the parties, and exists only in the absence
of an agreement between them in relation to its subject matter:
Stevenson v. Crapnell, 114 111. 19, 2S N. E. 379; Godschalk v. Fulmer,
176 111. 64, 51 N. E. 852; Benson v. Dempster, 183 111. 297, 55 N. E.
651; Hillman v. Allen, 145 Mo. 638, 47 S. W. 509; Pollard v. Mc-
Kenney, 69 Neb. 74, 96 N. W. 679, 101 N. W. 9; Jamison v. Miller,
27 N. J. Eq. 586; Wiser v. Allen, 92 Pa. 317. Thus where land is
deeded to one person by absolute deed while another pays the con-
sideration therefor, in the absence of any agreement between the
parties, the law raises a resulting trust in the land, so that the ap-
parent grantee holds the title as trustee for the person who paid the
consideration: Champlin v. Champlin, 136 111. 309, 29 Am. St. Eep.
323, 26 N. E. 526.
A constructive trust, on the other hand, is merely an express trust
wherein some transaction of equitable cognizance is inseparably con-
nected with the creation of the trust, so that a court of equity has
jurisdiction to administer relief to the parties on the whole trans-
action, including the express agreement between them, notwithstand-
ing that agreement is oral and would not be cognos^ible in a court
of justice in the absence of the equitable elements connected with
it. A constructive trust can never arise in the absence of an ex-
it of trust between those concerned in the transfer of
the legal titles of land, but is always superimposed upon and could
not exist without an express oral trust, which in turn would be unen-
forceable without the constructive trust. A person who holds land
subject to a constructive trust is often termer] in the decisions a trus-
tee ex maleficio.
It ii appropriate, therefore, to divide all express oral trusts in land
into two classes: Constructive trusts, and those in which no trans
act inn of equitable cognizance is involved, which may properly bo
called simple tru is. Resulting trusts arc aot, however, in any view,
express trusts. Indeed, a resulting trust does not arise where there is
Estate of Snook. 247
an express agreement of trust between the parties, although such agree-
ment is invalid.
la- the absence of a statute of frauds prohibiting oral trusts in
land, the distinction between simple and constructive trusts is mostly
immaterial, for in such case, except as affected by the necessity of
consideration to support simple trusts, the validity and effect of sim-
ple and constructive trusts is substantially the same; but in jurisdic-
tions where simple trusts are required to conform to the requirements
of a statute of frauds, from the operation of which constructive trusts
are excepted, a wide divergence becomes manifest between the valid-
ity and effect of simple and constructive trusts.
Conceding that the statute of frauds is a wise and salutary enact-
ment, there is fair ground for the distinction which it recognizes
between simple and constructive oral trusts. If the rule requiring at
least a written memorandum, in case of dealings with land, was to
have any efficiency at all, it is manifest that a mere careless indiffer-
ence to or negligent disregard of its requirements, as is shown in an
attempt to create a simple verbal trust, must be interdicted. Where,
however, there is some equitable excuse for neglect of the require-
ments of the statute, as where, for instance, that neglect was induced
by inadvertence, mistake, imposition, or fraud, either of which has
always been a ground for equitable interposition, a constructive trust
arises, and courts of equity are ever ready to intervene, the statute
law permitting.
Simple Trusts.
Necessity of Writing in General. — In most states a simple trust
in land, to be enforceable, must be in writing: Oden v. Lockwood,
136 Ala. 514, 33 South. 895; Salyers v. Smith, 67 Ark. 526, 55 S. W.
936; Von Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883; Hayden v.
Denslow, 27 Conn. 335; Walker v. Brown, 104 Ga. 357, 30 S. E. 867;
Potter v. Clapp, 203 111. 592, 96 Am. St. Rep. 322, 68 N. E. 81; Brown
v. White, 32 Ind. App. 100, 67 N. E. 273; Gregory v. Bowlsby, 115
Iowa, 327, 88 N. W. 822; Wright v. King, Har. Ch. 12; Cameron v.
Nelson, 57 Neb. 381, 77 N. W. 771; Elder v. Webber (Neb.), 92 N. W.
126; Eaton v. Eaton, 35 N. J. L. 290; Sturtevant v. Sturtevant, 20
N. Y. 39, 75 Am. Dec. 371; Wheeler v. Eeynolds, 66 N. Y. 227. In
some of these states the language of this rule in substance is that
such trust must be manifested or proved by some writing signed by
some party enabled to create the trust: Learned v. Tritch, 6 Colo.
433; Home v. Ingraham, 125 111. 198, 16 N. E. 868; Moore v. Horsley,
156 111. 36, 40 N. E. 323; Mohn v. Mohn, 112 Ind. 285, 13 N. E. 859;
McClain v. McClain, 57 Iowa, 167, 10 N. W. 333; Andrew v. Concan-
non, 76 Iowa, 251, 41 N. W. 8; Brown v. Barngrover, 82 Iowa, 204, 47
N. W. 1082; Dunn v. Zwilling, 94 Iowa, 233, 62 N. W. 746; Hoon v.
Hoon, 126 Iowa, 391, 102 N. W. 105; Heddleston v. Stoner, 128 Iowa,
525, 105 N. W. 56; Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804; Dorsey
v. Clarke, 4 Har. & J. 551; McElderry v. Shipley, 2 Md. 25, 56 Am.
248 Coffey's Probate Decisions, Vol. 5.
Dec. 703; "Wolf v. Corby, 30 Md. 336; Northampton Bank v. "Whit-
ing, 12 Mass. 104; Green v. Cates, 73 Mo. 115; Rogers v. Ramey, 137
Mo.' 598, 39 S. W. 66; Hillman v. Allen, 145 Mo. 638, 47 S. W. 509;
Smith v. Howell, 11 N. J. Eq. 349; Aller v. Crouter, 64 N. J. Eq.
381, 54 Atl. 426; Jackson v. Moore, 6 Cow. 706; Jeremiah v. Pitcher,
20 Misc. Eep. 513, 45 N. Y. Supp. 758; Dilts v. Stewart (Pa.), 1 Atl.
587; Pinney v. Fellows, 15 Vt. 525; but in other states the more
6tringent language is used that such trust must be created or declared
in writing signed by such party: Patton v. Beecher, 62 Ala. 579; White
v. Farley, 81 Ala. 563, 8 South. 215; Brackin v. Newman, 121 Ala.
311, 26 South. 3; Brison v. Brison, 75 Cal. 525, 7 Am. St. Eep. 189,
17 Pac. 6S9; Barr v. O'Donnell, 76 Cal. 469, 9 Am. St. Rep. 242, 18
Pac. 429; Doran v. Doran, 99 Cal. 311, 33 Pac. 929; Smith v. Peacock,
114 Ga. 691, 88 Am. St. Eep. 53, 40 S. E. 757; Eaton v. Barnes, 121
Ga. 548, 49 S. E. 593; Ellis v. Hill, 162 111. 557, 44 N. E. 858; Mon-
son v. Hutchin, 194 111. 431, 62 N. E. 788; Peterson v. Boswell, 137
Ind. 211, 36 N. E. 845; Patterson v. Mills, 69 Iowa, 755, 28 N. W.
53; Moran v. Somes, 154 Mass. 200, 28 N. E. 152; Shafter v. Hunt-
ington, 53 Mich. 310, 19 N. W. 11; Thompson v. Marley, 102 Mich.
476, 60 N. W. 976; Randall v. Constans, 33 Minn. 329, 23 N. W. 530;
Hansen v. Berthelson, 19 Neb. 433, 27 N. W. 423; Pollard v. McKen-
ney, 69 Neb. 742, 96 N. W. 679, 101 N. W. 9; Ryan v. Dox, 34 N. Y.
307, 90 Am. Dec. 696; Wood v. Rabe, 96 N. Y. 414, 48 Am. Rep. 640;
Fleming v. Donahue, 5 Ohio, 255. It would seem, however, that both
expressions of the rule have been interpreted by the courts as a
statement of a rule of evidence preventing the proof of a simple trust
by parol rather than as one of substantive law wholly invalidating
it, and no clear difference in the application of the statutory rule,
based on this difference of language, can be discerned. There never-
theless are some decisions wherein the courts have declared that
where such trusts are not duly manifested in writing they are void
(Moore v. Campbell, 102 Ala. 415, 14 South. 7S0; Champlin v. Champ-
lin, 136 111. 309, 29 Am. St. Rep. 323, 26 N. E. 526; Johnston v. John-
ston, 138 111. 385, 27 N. E. 930; Monson v. Hutchin, 191 111. 431, 62
N. E. 788; Ilain v. Robinson, 72 Iowa, 735, 32 N. W. 417; Rogers v.
Richards, 67 Kan. 706, 74 Pac. 255; Dorsey v. Clarke, 4 Har. & J.
551; Wolf v. Corby, 30 Md. 356; Renz v. Stoll, 94 Mich. 377, 34 Am.
St. Rep. 358, 54 N. W. 276; Luse v. Reed, 63 Minn. 5, 65 N. W. 91;
In r s Estate, 92 Minn. 506, 100 N. W. 380; Coffery v. Sullivan
(X. J. Eq.), 49 Atl. 520; Salter v. Bird, 103 Pa. 436), in equity as
well as at law (Wheeler v. Reynolds, 66 N. Y. 227), and this lan-
- also found in some of the statutes; but in the decisions this
lan^; as usually been used merely in repetition of the statutory
•'• or < lsc in cases where it was immaterial whether the oral
<.i.l or merely unenforceable, and in the statutes its force
is generally modified by the context. In McCormick Harvesting Ma
o Co. v. Griflin, 116 Iowa, 397, 90 N. W. 84, however, it is said
Estate of Snook. 219
•with strict accuracy that an oral trust in land is not void, but merely
unenforceable by reason of the inability of the cestui que trust to
prove it. For oral evidence is not admissible for that purpose, but
only documentary: Maroney v. Maroney, 97 Iowa, 711, 66 N. W. 911;
Luckhart v. Luckhart, 120 Iowa, 248, 94 N. W. 461; Hillman v. Allen,
145 Mo. 638, 47 S. W. 509; Graves v. Graves, 29 N. H. 129; Farring-
ton v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 3S2; McVay v.
McVay, 43 N. J. Eq. 47, 10 Atl. 178; Aller v. Crouter, 64 N. J. Eq.
381, 54 Atl. 426; Eathbun v. Eathbun, 6 Barb. 98; Jeremiah v. Pitcher,
20 Misc. Eep. 513, 45 N. Y. Supp. 758.
It follows from this rule requiring documentary evidence of a trust
in land that an absolute deed of land cannot be changed by oral
testimony into a deed of trust: Jones v. Van Doren, 18 Fed. 619;
Skahen v. Irving, 206 111. 597, 69 N. E. 510; Eogers v. Eamey, 137
Mo. 598, 39 S. W. 66. Thus an oral agreement by the grantee of
land to hold it in trust for the grantor or to reconvey it to him
upon the happening of a certain event is not enforceable: Patton v.
Beecher, 62 Ala. 579; Barr v. O'Donnell, 76 Cal. 469, 9 Am. St. Eep.
242, 18 Pac. 429; Fenney v. Howard, 79 Cal. 525, 12 Am. St. Eep.
162, 21 Pac. 984, 4 L. E. A. 826; Bohm v. Bohm, 9 Colo. 100, 10 Pac.
790; Lawson v. Lawson, 117 111. 98, 7 N. E. 84; Biggins v. Biggins,
133 111. 211, 24 N. E. 516; Campbell v. Brown, 129 Mass. 23; Hillman
v. Allen, 145 Mo. 638, 47 S. W. 509; O'Brien v. Gashin, 20 Neb. 347,
30 N. W. 274; Dailey v. Kinsler, 31 Neb. 340, 47 N. W. 1045; Thomas
v. Churchill, 48 Neb. 266, 67 N. "W. 182; Veeder v. McKmley-Lan-
ning Loan & Trust Co., 61 Neb. 892, 86 N. W. 982; Doying v. Chese-
brough (N. J. Eq.), 36 Atl. 893; Pusey v. Gardner, 21 W. Va. 469;
Fairchild v. Easdall, 9 Wis. 379. This is equally true, although the
grant was made without consideration: Gregory v. Bowlsby, 115 Iowa,
327, 88 N. W. 822; Gee v. Thraikill, 45 Kan. 173, 25 Pac. 5S8; Far-
rington v. Barr, 36 N. H. 86. Thus an oral promise by the grantee
to will certain other property to the grantor (Manning v. Pippen,
86 Ala. 357, 11 Am. St. Eep. 346, 5 South. 572), or to support the
grantor for life (Salyers v. Smith, 67 Ark. 526, 55 S. W. 936), or to
hold the deed as an escrow (Stevenson v. Crapnell, 114 111. 19, 28
N. E. 379), or to permit the grantor to repurchase it at a given price
(Harper v. Harper, 5 Bush, 176), or to reconvey to the grantor in
case of failure to pay the purchase price (Gallagher v. Mars, 50 Cal.
23), is not enforceable. Moreover, where the grantee in violation of
the trust sold the land and appropriated the proceeds, the grantor
cannot maintain an action to recover the proceeds: Mohn v. Mohn,
112 Ind. 285, 13 N. E. 859. And where a grantor of land claims that
the grantee obtained the grant by fraud, and such grantee had in
turn granted it to a third person on an oral trust to hold for herself,
and the first grantor brought an action to compel a reconveyance of
the land wherein a default judgment was obtained against the latter
grantee, even if it appeared on a trial subsequent to the entry of
250 Coffey's Probate Decisions, Vol. 5.
the default that the first grantee did not obtain the deed by fraud,
she is not entitled to relief against the first grantor, the trust by
which the land was held for her being oral and the default against
the latter grantee not having been set aside: Dailey v. Kinsler, 31
Neb. 340, 47 N. W. 1045.
Similarly, where the grantor of land by absolute deed conveys it
to the grantee under a verbal trust on his part to hold the land in
trust for a third person, the trust is unenforceable: Lantry v. Lan-
try, 51 111. 451, 2 Am. Eep. 310; Prouty v. Moss, 111 111. App. 536;
Green v. Cates, 73 Mo. 115.
Again, an oral agreement by a grantee of land to take and hold
for another land, the purchase price of which was paid for by the
other, is within the statute of frauds: Coleman v. Bowles' Admr.
(Ky.), 56 S. W. 651.
Likewise a declaration by a person on his deathbed that he desired
that one-half of certain land should ,be the property of a certain per-
son does not, he having made no will, create a trust in the land as
against his heir: Campbell v. Brown, 129 Mass. 23.
And where land subject to an oral trust passed by mesne convey-
ances to a certain grantee, who, dying, the property passed to her
heirs, the trustor cannot enforce the trust as against her heirs: Law-
son v. Lawson, 117 111. 98, 7 N. E. 84.
Finally, in Farrand v. Beshoar, 9 Colo. 291, 12 Pac. 196, the court
held that where a simple trust in land rests in parol, a decree sus-
taining the trust cannot be sustained.
What Constitutes Trust in Land Within Rule. — In some states the
rule requiring a trust to be manifested in writing is directed not
alone at trusts concerning lands, but also at trusts in any manner
relating to lands: Shafter v. Huntington, 53 Mich. 310, 19 N. W. 11;
Eandall v. Constans, 33 Minn. 329, 23 N. W. 530; Pollard v. McKen-
ney, 68 Neb. 742, 96 N. W. 679, 101 N. W. 9; Eyan v. Dox, 34 N. Y.
307, 90 Am. Dec. 696. It is therefore held that where by a will
certain land was devised to a devisee under an oral trust that the
devisee would give five hundred dollars to a certain beneficiary, the
fact that the executor of the estate was required by the will to sell
and convert into money all the estate before distribution does not
validate the trust as one relating to moneys: Moore v. Campbell,
102 Ala. 445, 14 South. 780. And where a grantor conveys land to
another for a part present consideration and on the agreement that
the grantee shall hold one-half of the land in trust for the grantor,
and upon the sale of the land pay the grantor one-half the net avails
thereof, an action to recover from the grantee one half thereof can-
not be maintained: Cameron v. Nelson, 57 Neb. 381, 77 N. W. 771.
In Betchel v. Amnion, l!)'.t Pa. 81, 48 Atl. 873, however, the courl
holds thai a n oral trust to sell lands and account for the proceeds,
where the lands have been sold and the proceeds are in the hands of
the trustee, is not within the statute of frauds. And in New 1'ork,
Estate of Snook. 251
where the statute of frauds has the broad language mentioned in the
preceding paragraph, the court held that where land is conveyed
under an oral trust to hold for a certain cestui que trust, and the
grantee conveys all the land to purchasers and receives the purchase
money and pays over all except the last portion of it to the cestui
que trust, but refuses to pay over such residue, the cestui que trust
may maintain an action to recover it and the statute of frauds is
no defense therein, the trust having been performed so far as it
concerned realty. "If the defendant should say that he now can
keep the money because he once could keep the land, still the plaintiff
can say with better justice that he is not entitled to the money be-
cause it was originally his, and though he voluntarily suspended his
right to it for a season, he did so without lawful consideration and
in confidence that when it could be restored to him it would be.
That time has come, and there is no obstacle to its restoration" : Bork
v. Martin, 132 N. Y. 280, 28 Am. St. Eep. 570, 30 N. E. 584.
Again, the fact that a chose in action was secured by a mortgage
on land does not render a trust in the chose in action subject to the
provisions of the statute of frauds relating to trusts in land: Patter-
son v. Mills, 69 Iowa, 755, 28 N. W. 53.
Manifestation of Oral Trust in Writing. — Z" is not requisite that
the writing whereby a simple trust in land is manifested be made
contemporaneously with the creation of the trust, but it may be estab-
lished by a writing signed by the alleged trustee and setting forth
the trust made at any time, whether long thereafter or in anticipation
and contemplation thereof: Jackson v. Moore, 6 Cow. 706; Eathbun
v. Rathbun, 6 Barb. 98; Hutchinson v. Hutchinson, 84 Hun, 482, 32 N.
Y. Supp. 390; McVay v. McVay, 43 N. J. Eq. 47, 10 Atl. 178; Aller v.
Crouter, 64 N. J. Eq. 381, 54 Atl. 426. Thus where the grantee of
land took the same on a verbal trust to convey a portion thereof to
the value of five hundred dollars to her daughter upon her arrival
at the age of twenty, and five years afterward put this verbal agree-
ment in writing, there is a valid enforceable trust in her daughter's
favor: Pendleton v. Patrick (Ky.), 57 S. W. 464. So where the gran-
tee of land under an oral trust put the same in writing in strict ac-
cordance with the oral declaration a long time after the title to the
land had vested in him, the trust is valid against a creditor of the
trustee: Iauch v. De Socarras, 56 N. J. Eq. 538, 39 Atl. 370.
This written evidence of the trust "may be found and deduced
from one or more writings if they bear a relation to each other and
import a trust. The writing need not be of a formal character, but a
trust may be imported and proved by letters, deeds, and other writ-
ings signed by the party to be charged": Aller v. Crouter, 64 N. J.
Eq. 381, 54 Atl. 426. It may thus be deduced from a writing made
ten years after the creation of the trust, which writing the trustee
had signed merely by writing his initials in the body: Smith v.
Howell, 11 N. J. Eq. 349.
252 Coffey's Probate Decisions, Vol. 5.
Moreover, "while parol evidence of an express trust is to be re-
jected, yet, when an instrument is claimed to be an acknowledgment
and proof of such a trust, the circumstances under which it was made
may be used to elucidate its construction": Aller v. Crouter, 64 N. J.
Eq. 3S1, 54 Atl. 426.
Depositions and Pleadings as Manifestation of Trust. — In some de-
cisions it is held that a simple oral trust is sufficiently manifested in
writing by a deposition signed by the alleged trustee and clearly set-
ting out the terms of the trust: Mclntire v. Skinner, 4 G. Greene, 89;
Pinney v. Fellows, 15 Vt. 525. Moreover, an answer in chancery ad-
mitting the trust, although not responsive to the bill in the cause,
sufficiently manifests the trust to satisfy the statute of frauds: Jami-
son v. Miller, 27 N. J. Eq. 586. And where a verified petition to en-
force an oral trust in land sets up the trust and the verified answer
avers that defendant has no reason to doubt the averments of the
petition, and is signed by the defendant in the verification, the trust
is sufficiently manifested in writing: McVay v. McVay, 43 N. J. Eq.
47, 10 Atl. 178.
In Davis v. Stambaugh, 163 111. 557, 45 N. E. 170, however, the
court held that where a defendant in a suit to enforce a simple oral
trust in lands claimed the benefit of the statute of frauds by his
answer, neither an admission of the existence and character of the
trust contained in his deposition, nor a similar admission in his
answer, is sufficient to satisfy the requirements of the statute, for
the reason that "a party who insists upon his statutory right and does
not submit to waive it cannot be legally bound by a declaration or
creation of trust which the statute declares to be utterly void and of
no effect."
Part Performance of Trust.— "Acts of part performance, such as
will furnish a foundation for enforcing a verbal contract respect-
ing land otherwise void under the statute of frauds, must be such
as are done in pursuance, or according to the terms, of the contract,
and which in some manner affect or change the relation of the par-'
ties so that they would be defrauded if the contract were not en-
forced Actual possession in furtherance of the terms of the
specially when accompanied by the making of permanent
and valuable improvements upon the premises, may be made the
foundation for a decree of specific performance; but mere possession
will not be deemed a part performance sufficient to justify such re-
lief \vli<o it may be fairly referable to some other cause than the
iti.m df (he contract": Von Trotha v. Bamberger, 15 Colo. 1, 24
Pac. 883. "Acts to be deemed a part performance of a parol agree-
'"' "' top a party from insisting upon the statute of
frauds, should be SO clear, certain, and definite in their object and
'-'" ;is to refer < xclusively to a complete and perfect agreement
of which th<y are a part execution And they must bo a part
Estate of Snook. 253
performance of the precise agreement set up": Rathbun v. Rathbt.n,
6 Barb. 98. So where a party purchases land under a verbal agree-
ment to hold the same in trust for another, and the latter on the
faith of the agreement thereupon advances a part of the purchase
money and comes from another state and takes possession of the prem-
ises, there is such part performance and execution of the trust as
takes it out of the statute of frauds: Oberlender v. Butcher, 67 Neb.
410, 93 N. W. 764. This same principle is also applicable where the
cestui que trust of land takes possession or remains in possession
thereof pursuant to a verbal agreement made at the time of the crea-
tion of an oral trust therein: Spies v. Price, 91 Ala. 166, 8 South.
405; Simonton v. Godsey, 174 111. 28, 51 N. E. 75; Dorsey v. Clarke,
4 Har. & J. 551. Where, however, the trustee charges the cestui que
trust in possession with rent, entering the same in his books, the
effect of the possession as part performance is annulled: Dorsey v.
Clarke, 4 Har. & J. 551. And where after title to land is taken in
the name of another the cestui que trust merely remains in posses-
sion without any agreement that such possession was in pursuance
of the verbal trust, the case is within the statute of frauds: Went-
worth v. Wentworth, 2 Minn. 277 (Gil. 238), 72 Am. Dec. 97. Simi-
larly, where the cestui que trust goes into possession pursuant to the
terms of a subsequent verbal agreement, independent of the agree-
ment of trust, he cannot defend his right to continue possession
thereof on the ground of the oral trust existing in his favor: Von
Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883.
Finally, a verbal promise by the owner of land, not founded on a
valuable consideration, to convey certain land to one who was in
possession thereof by his permission, cannot be enforced against him
or his heirs: Tolleson v. Blackstock, 95 Ala. 510, 11 South. 284.
Execution of Trust. — "The statute of frauds is an insuperable bar
to an action to enforce a parol contract within its provisions, but
it does not make the transaction illegal, and parties are at liberty
to act under such contracts if they see proper": Eaton v. Eaton, 35
N. J. L. 290. It was enacted, not that parties might avoid trusts
that were executed, but rather to enable them, in case of an attempt
to enforce such trusts while they remained executory, to insist on
certain modes of proof in order to establish them: Hays v. Regar, 102
Ind. 524, 1 N. E. 386. Thus a person who holds land subject to a
simple oral trust has a right to recognize his moral obligation and
convey the land to such person as his grantor intended, and on the
conditions the latter thought fit to impose, and when such convey-
ance is made the trust is executed, and it becomes immaterial whether
or not its performance could have been compelled: Robbins v. Rob-
bins, 89 N. Y. 251. So where lands that were in fact the separate
property of a wife, but stood in the names of herself and husband,
and they joined in a deed of the lands to a third person under a
verbal trust on his part to reconvey to the wife individually, such
254 Coffey's Probate Decisions, Vol. 5.
trust is not void, but only voidable, and if the property was in fact
reconveyed before any equities attached to it in the hands of the
third person, the reconveyance would put an unimpeachable title in
the wife: Gallagher v. Northup, 215 111. 563, 74 N. E. 711, Cart-
wright and Hand, JJ., dissenting, reversing 114 111. App. 368. And
where a party receives a conveyance of lands from his brother on
the oral understanding that in case of the brother's death he would
convey to his daughters, which conveyance, the brother having died,
he makes, such conveyance would be regarded as made in perform-
ance of such agreement, and would be upheld as not affected by the
statute of frauds: Collins v. Collins, 98 Md. 473, 103 Am. St. Eep.
408, 57 Atl. 597.
The trust, when executed, is also valid against third parties as well
as between the parties. It does not lie in the mouth of a third party
in whose favor no estoppel is shown to exist to say that the contract
creating the trust was void and conferred no rights: McCormick Har-
vesting Machine Co. v. Griffin, 116 Iowa, 397, 90 N. W. 84. So where
a widow who held land under an oral trust for her children conveyed
to each his respective share, a second husband is not entitled to claim
dower in such land: King v. Bushnell, 121 111. 656, 13 N. E. 245.
And where such trust is executed, it is valid against a judgment
creditor of the trustee: Hays v. Regar, 102 Ind. 524, 1 N. E. 386.
The validity of a simple oral trust, when fully executed, is also
affirmed in many other cases: Polk v. Boggs, 122 Cal. 114, 54 Pac.
536; Church v. Sterling, 16 Conn. 388; Hayden v. Denslow, 27 Conn.
335; Stringer v. Montgomery, 111 Ind. 4S9, 12 N. E. 474; Barber v.
Milner, 43 Mich. 248, 5 N. W. 92; Bork v. Martin, 132 N. Y. 280, 28
Am. St. Eep. 570, 30 N. E. 584. And in support of a conveyance
made pursuant to such oral trust in land, the parol agreement creat-
ing may be proven: Brown v. White, 32 Ind. App. 100, 67 N. E. 273.
The Exceptional Rule — Creation Contemporaneously with Transfer
of Land. — In a few states there is no statutory provision requiring
a trust in lands to be manifested in writing, and an express simple
trust may be created by an oral declaration of trust made contem-
poraneously with, or in contemplation and anticipation of, the trans-
fer of the legal title to land by absolute deed: Cohn v. Chapman, 62
N. C. 92, 93 Am. Dec. 600; Pittman v. Pittman, 107 N. C. 159, 12
S. E. 61, 11 L. R. A. 456; Dover v. Rhea, 108 N. C. 88, 13 S. E. 614;
Cobb v. Edwards, 117 N. C. 244, 23 S. E. 241; Owens v. Williams.
130 N. (.'. L65, 11 3. E. 93; Sykes v. Boone, 132 N. C. 199, 95 Am. St.
Eep. 619, 43 S. E. 645; Haywood v. Ensley, 8 Humph. 160; Thump
eon v. 'I on (Tenn. Ch.), 54 S. W. 145; Woodfin v. Marks, 104
Tenn. 512, 58 s. W. 227; Renshaw v. First National Bank (Tenn.),
r,:: s. \V. L94; James v. Fulrod, 5 Tex. 512, 55 Am. Dec. 743; Mead v.
Randolph, S Tex. 191; Bailey v. Harris, 19 Tex. 108; Leaky v. Gun-
ter, 26 Tex. 400; Gardner v. Russell, 70 Tex. 153, 7 S. W. 781. Com
pure Mathewa v. Maseey, 1 Baxt. 150. So where a person, being in
Estate of Snook. 255
default in the payment of the installments of the purchase price of
certain land, accepted the offer of a third person 'to pay the amount
due and hold the land for him, and assigned to him his contract of
purchase of the land but continued in possession of it, he may com-
pel the transferee of the land to execute the trust: Cloninger v. Sum-
mit, 55 N. C. 513. See, also, Cohn v. Chapman, 62 N. C. 92, 93 Am.
Dec. 600. Where, in consideration of receiving a power of sale from
the mortgagor of land, the mortgagee agreed to buy the same in at
the sale thereof under the power and to convey a certain portion
thereof to a trustee for the mortgagor's wife, but afterward, after his
purchase of the land, refused to make such conveyance to the wife,
equity will enforce the agreement: Blount v. Carroway, 67 N. C. 396.
Where a person sold land under an oral agreement that the grantee
would transfer the land to another for a certain consideration on the
grantor's request, such trust is enforceable: Sykes v. Boone, 132 N. C.
199, 95 Am. St. Eep. 619, 43 S. E. 645. A parol contract under which
two or more persons buy land for their joint benefit, but take the
title in the name of one, may be enforced against the holder of the
legal title: Gardner v. Kundell, 70 Tex. 453, 7 S. W. 781. Moreover,
where the intending purchaser of land at judicial sale agreed pre-
viously and in contemplation of the sale, or at the time of bidding,
that he would hold the land subject to redemption by another person
(Cobb v. Edwards, 117 N. C. 244, 23 S. E. 241), or held out to other
intending bidders at the sale that he was purchasing for some cer-
tain person by reason whereof they were deterred from bidding
against him (Haywood v. Ensley, 8 Humph. 460; Woodfin v. Marks,
104 Tenn. 512, 58 S. W. 227), the cestui que trust may enforce the
oral trust.
In Tennessee, however, it is held that it is not competent to set
up a parol trust in opposition to the provisions of a deed. Indeed,
if the deed upon its face and by its terms is absolute and conveys to
the grantee a fee simple estate without more, the trust character
can be shown by oral evidence, because this would not, in the con-
templation of the law, in any way contradict the terms of the deed,
but would only complete it. But if the deed contains provisions
which expressly or by clear implication give the grantee a power or
discretion to defeat the trust, or are inconsistent with it, then the
trust does not exist in such shape as to be mandatory upon the gran-
tee. Thus if the deed by its express terms gives the grantee the
right to dispose of the land in such way as she may see fit, and for
such purpose as she may deem best, a parol trust to convey the prop-
erty to certain persons cannot be shown: Mee v. Mee, 113 Tenn. 453,
106 Am. St. Eep. 865, 82 S. W. 830.
The full validity of parol trusts in land of the type just described
was also formerly recognized in several other states, but they have
since been done away with by the extension of the statutes of frauds
in those states: Patton v. Beecher, 62 Ala. 579; Church v. Sterling,
25G Coffey's Probate Decisions, Vol. 5.
16 Conn. 388; Fleming v. Donahue, 5 Ohio, 255 ; Kisler v. Kislcr, 2
Watts, 323, 27 Am. Dec. 308; Murphy v. Hubert, 7 Pa. 420.
A consideration is not necessary to support a simple oral trust in
lands, made at the time of, or in contemplation and anticipation of,
the transfer of the legal title: Sykes v. Boone, 132 N. C. 199, 95 Am.
St. Rep. 619, 43 S. E. 645. See, also, Gardner v. Eundell, 70 Tex.
453, 7 S. W. 781.
The fact that the cestui que trust under such an oral trust, as a
condition precedent to his right to receive a conveyance of the land,
•was required not only to reimburse the purchaser of the legal title
for his advances in purchasing it, but was also to pay a certain debt
he owed the purchaser's wife, does not invalidate the trust: Owens
v. Williams, 130 N. C. 165, 41 S. E. 93.
In order that a court may give effect to an alleged oral trust in-
land, the evidence offered to sustain it must be clear and convincing:
Hamilton v. Buchanan, 112 N. C. 463, 17 S. E. 159; Cobb v. Edwards,
117 N. C. 244, 23 S. E. 241; Renshaw v. First National Bank (Tenn.),
63 S. W. 194. Moreover, in North Carolina at least, the subsequent
declarations of the alleged trustee in support of the trust are not
by themselves alone sufficient evidence to sustain a judgment en-
forcing the trust; but while they are admissible in evidence for that
purpose, there must be evidence of other facts and circumstances
inconsistent with the idea that there was an absolute purchase by
the alleged trustee: Taylor v. Taylor, 54 N. C. 246; Pittman v. Pitt-
man, 107 N. C. 159, 12 S. E. 61, 11 L. R. A. 456; Cobb v. Edwards,
117 N. C. 244, 23 S. E. 241.
Creation Independently of Transfer of Land. — A trust in land can-
not, however, be created by parol independently of a transfer of the
legal title to the land, although for a valuable consideration, for
such transaction is in effect only the sale of an interest in land by
parol, and transgresses the provision of the statute of frauds requir-
ing such a sale to be evidenced in writing: Frey v. Ranisour, 66 N.
C. 466; Blount v. Carroway, 67 N. C. 396; Dover v. Rhea, 108 N. C.
88, 13 S. E. 614; Hamilton v. Buchanan, 112 N. C. 463, 17 S. E. 159;
Cobb v. Edwards, 117 N. C. 244, 23 S. E. 241; Kelly v. McNeill, 118
N. C. 349, 24 S. E. 738. Thus a parol agreement made by the pur-
chaser of land, alter the purchase was consummated, to hold the land
in trust for others, is unenforceable: Hamilton v. Buchanan, 112 N.
C. 463, 17 B. B. L59; Kelly v. McNeill, 118 N. C. 349, 24 S. E. 738.
And v. In re the legal estate in lands is not conveyed, a trust cannot
be raised by a parol declaration, even though founded on a valuable
[deration and followed by actual occupancy and the erection of
valuable improvements: Cobb v. Edwards, 117 N. C. 244, 23 S. E. 241.
Constructive Trusts.
In Gonernl. — As stated jn the fust division of this article, construc-
tive trusts am not subject to the statutory provisions requiring an
Estate of Snook. 257
express trust to be manifested in writing, but are in almost all, if
not all, jurisdictions expressly excepted from that requirement: Pat-
ton v. Beecher, 62 Ala. 579; White v. Farley, 81 Ala. 563, 8 South.
215; Brison v. Brison, 75 Cal. 525, 7 .Am. St. Eep. 189, 17 Pac. 689;
Hayne v. Herman, 97 Cal. 259, 32 Pac. 171; "Wittenbrock v. Cass, 110
Cal. 1, 42 Pac. 300; Church v. Sterling, 16 Conn. 388, 401; Godschalk
v. Fulmer, 176 111. 64, 51 N. E. 852'; Peterson v. Boswell, 137 Ind. 211,
36 N. E. 845; Patterson v. Mills, 69 Iowa, 755, 28 N. W. 53; Dorsey
v. Clarke, 4 Har. & J. 551; Moran v. Somes, 154 Mass. 200, 28 N. E.
152; Shafter v. Huntington, 53 Mich. 310, 19 N. W. 11; Randall v.
Constans, 33 Minn. 329, 23 N. W. 530; Pollard v. McKenney, 69 Neb.
742, 96 N. W. 679, 101 N. W. 9; Graves v. Graves, 29 N. H. 129, 141;
Farrington v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 382;
Eyan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Wood v. Rabe, 96 N. Y.
414, 48 Am. Rep. 640; Salter v. Bird, 103 Pa. 436.
While it has been declared that a constructive trust will arise
whenever by any mistake an instrument of conveyance of land is
made absolute instead of expressing the trust intended (Fairchild v.
Rasdall, 9 Wis. 379), yet the ordinary ground of equitable interposi-
tion to enforce an oral trust in land is fraud, actual or constructive,
and whenever actual or constructive fraud is inseparably connected
with the creation of such a trust, a court of equity will take cognizance
of the matter and grant appropriate relief against the trustee: Brison
v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689; Hayne v.
Hermann, 97 Cal. 259, 32 Pac. 171; Wright v. Moody, 116 Ind. 175, 18
N. E. 608; Randall v. Constans, 33 Minn. 329, 23 N. W. 530; Pollard
v. McKenney, 69 Neb. 742', 96 N. W. 679, 101 N. W. 9; Fairchild v.
Rasdall, 9 Wis. 379. In such case, however, the court does not act
upon the oral agreement as the primary thing, but the fraud gives
it its jurisdiction, and the oral agreement is cognizable by it as an
element in the fraudulent transaction: Randall v. Constans, 33 Minn.
329, 23 N. W. 530; Perkins v. Cheairs, 2 Baxt. 194. In Parker v.
Catron, 27 Ky. Law Rep. 536, 85 S. W. 740, the court says that con-
structive trusts are held not within the statute of frauds because they
rest in the end on the doctrine of estoppel, and the operation of an
estoppel is never affected by the state of frauds.
As in the case of simple trusts in states where they are recognized,
so constructive trusts arise only upon the actual transfer of land and
not upon an executory contract to hold land in trust: Perkins v.
Cheairs, 2 Baxt. 194.
In order that a constructive trust may be established, the fraud or
mistake involved in it must be shown by clear and convincing proof.
Loose, indefinite, and unsatisfactory evidence is never sufficient:
Laughlin v. Mitchell, 14 Fed. 382; Brock v. Brock, 90 Ala. 86, 8 South.
11, 9 L. R. A. 287; Von Trotha v. Bamberger, 15 Colo. 1, 24 Pac.
883; Lantry v. Lantry, 51 111. 451, 2 Am. Rep. 310; Wilson v. Mc-
Dowell, 78 111. 514; Hammond's Adrax. v. Cadwallader, 29 Mo. 16.
Prob. Dec, Vol. V — 17
25S Coffey's Probate Decisions, Vol. 5.
Actual Fraud. — In order that a trust in land may arise by reason
of actual fraud, the title must be obtained by the alleged trustee by
false and fraudulent promises to hold and use the same for desig-
nated uses, and must subsequently be converted to other purposes or
claimed by the grantee as his own. Mere subsequent fraud is not
sufficient. There must be fraud in the original transaction of such a
character as to constitute a fraudulent contrivance for the purpose of
acquiring the legal title, and the title must have been obtained
through the fraudulent contrivance: Patton v. Beecher, 62 Ala. 579;
Moseley v. Moseley, 86 Ala. 289, 5 South. 732; Spies v. Price, 91 Ala.
166, 8 South. 405; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790; Walter
v. Klock, 55 111. 362; Biggins v. Biggins, 133 111. 211, 24 N. E. 516;
Rogers v. Eichards, 67 Kan. 706, 74 Pac. 255; Luce v. Reed, 63 Minn.
5, 65 N. W. 91; Wheeler v. Reynolds, 66 N. Y. 227; Salter v. Bird,
103 Pa. 436; Braden v. Workman (Pa.), 1 Atl. 655; Perkins v. Cheairs,
2 Baxt. 194.
Thus the mere failure or refusal of an alleged trustee to comply
with the terms of an oral trust is not such fraud as will authorize
a court of equity to enforce the trust: Patton v. Beecher, 62 Ala. 579;
Moseley v. Moseley, 86 Ala. 289, 5 South. 732; Brock v. Brock, 90 Ala.
86, 8 South. 11, 9 L. R. A. 287; Brison v. Brison, 75 Cal. 5S5, 7 Am.
St. Rep. 189, 17 Pac. 698; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790;
Perry v. McIIenry, 13 111. 227; Rogers v. Simmons, 55 111. 76; Walter
v. Klock, 55 111. 362; Scott v. Harris, 113 111. 447; Davis v. Stam-
baugh, 163 111. 557, 45 N. E. 170; Dunn v. Zwilling, 94 Iowa, 233,
62 N. W. 746; Gregory v. Bowlsby, 115 Iowa, 327, 88 N. W. 822;
Heddleston v. Stoner, 128 Iowa, 525, 105 N. W. 56; Randall v. Con-
stans, 33 Minn. 329, 23 N. W. 530; In re Ryan's Estate, 92 Minn. 506,
100 N. W. 380; Hammond's Admx. v. Cadwallader, 29 Mo. 166;
Wheeler v. Reynolds, 66 N. Y. 227; Perkins v. Cheairs, 2 Baxt. 194;
Fairchild v. Rasdall, 9 Wis. 379. Nor does the denial by the trustee
of the exi-tence of such trust amount to such fraud: Scott v. Harris,
113 111. 447; Davis v. Stambaugh, 163 111. 557, 45 N. E. 170; Gregory
v. Bowlsby, 115 Iowa, 327, 88 N. W. 822. For "when the original
transaction is free from the taint of fraud or imposition, when the
written contract expresses all the parties intended it should, when the
parol ment which is sought to be enforced is intentionally ex-
cluded from it, it is difficult to conceive of any ground upon w
the imputation of fraud can rest, because of its subsequent violation
or repudiation, that would not form a basis for a similar imputation,
never any promise or contract is broken It is an annihila-
tion of tl <• statute [of frauds] to withdraw a case from its operation,
of such violation or repudiation of an agreement or trust it
all not be made or proved by parol. There can be no
fraud if the trust docs not exist, and proof of its existence by parol
is that which the statute forbids. In any and every case in which
the court ib called to enforce a trust there must be a repudiation of it,
Estate op Snook. 259
or an inability from accident to perform it. If the repudiation is a
fraud which justifies interference in opposition to the words and
spirit of the statute, the sphere of operation of the statute is prac-
tically limited to breaches from accident and no reason can be as-
signed for the limitation": Patton v. Beecher, 62 Ala. 579. "If the
refusal to comply with a parol agreement constitutes such fraud as to
take a case out of the statute, then no case is within it. For a party
has only to allege that a person contracting by parol fraudulently
refuses to comply with the terms of his parol agreement, which he
must do in every case, or there would be no necessity for resorting to
a court of equity to enforce it, and a case is made to which the stat-
ute does not apply": Perry v. McHenry, 13 111. 227. See, also, Brock
v. Brock, 90 Ala. 86, 8 South. 11, 9 L. E. A. 287; Bohm v. Bohm, 9
Colo. 100, 10 Pac. 790; Fairchild v. Easdall, 9 "Wis. 379.
Likewise the breach of the mere oral promise of a purchaser of
land to buy the same or to hold the title therefor in trust for another,
though made at the time of or in contemplation of the transfer of
the title to him, does not constitute such fraud as to invest a court
of equity with jurisdiction to enforce the trust, where the purchaser
buys in his own name and with his own means: Robbins v. Kimball,
55 Ark. 414, 29 Am. St. Rep. 45, 18 S. W. 457; Grayson v. Bowlin, 70
Ark. 145, 66 S. W. 658; Stephenson v. Thompson, 13 111. 186; Perry
v. McHenry, 13 111. 227; Wilson v. McDowell, 78 111. 514; MeDearmon
v. Burnham, 158 111. 55, 41 N. *E. 1094; Fowke v. Slaughter, 3 A. K.
Marsh. 56, 13 Am. Dec. 133; Miazza v. Yerger, 53 Miss. 135; Ham-
mond's Admx. v. Cadwallader, 29 Mo. 166; Henderson v. Hudson, 1
Munf. 510. And the same rule is generally applicable where the
purchase is made at judicial sale (White v. Farley, 81 Ala. 563, 8
South. 215 (foreclosure sale); Minot v. Mitchell, 30 Ind. 228, 95
Am. Dec. 685 (sheriff's sale, where it did not appear that bidders were
deterred by the promise) ; Walter v. Klock, 55 111. 362 (Breese, Scott
and Sheldon, JJ., dissenting); Thorp v. Bradley, 75 Iowa, 50, 39 N.
"W. 177 (foreclosure sale); Graves v. Dugan, 6 Dana, 331 (execution
sale, where the cestui que trust had actually paid the trustee the con-
sideration on payment of which the trust was conditioned); Bourke
v. Callahan, 160 Mass. 195, 35 N. E. 460 (foreclosure sale); Cobb v.
Cook, 49 Mich. 11, 12 N. W. 891 (execution sale); Walker v. Hill's
Exrs., 22 N. J. Eq. 513, affirming 21 N. J. Eq. 19 (execution sale);
Sherrill v. Crosby, 14 Johns. 358 (execution sale) ; Bander v. Snyder,
5 Barb. 63 (foreclosure sale); Lathrop v. Hoyt, 7 Barb. 59 (fore-
closure sale); Wheeler v. Reynolds, 66 N. Y. 227 (foreclosure sale);
Haines v. O'Connor, 10 Watts, 313, 36 Am. Dec. 180; Fox v. Heff-
ner, 1 Watts & S. 372; Appeal of McCall (Pa.), 11 Atl. 206; Salsbury
v. Black, 119 Pa. 200, 4 Am. St. Rep. 631, 13 Atl. 67; or at a tax
sale (Hain v. Robinson, 72 Iowa, 735, 32 N. W. 417), or at a sale un-
der a power contained in a mortgage (Rose v. Fall River Five Cents
feav. Bank, 165 Mass. 275, *d X. E. 93), or in a trust deed in the
260 Coffey's Probate Decisions, Vol. 5.
nature of a mortgage (Mansur v. Willard, 57 Mo. 347), or generally
at public auction (Farnham v. Clements, 51 Me. 426).
Where, however, the purchaser of land at public auction, by reason
of his oral promise to buy the same or to hold the title therefor for
the use of some person whose interest in the property is about to be
sold, is enabled to obtain the land at a price greatly below its
market value, it is a fraud for him to attempt to hold it in violation
of said promise, and he may be held as a trustee ex maleficio of the
land for the benefit of the cestui que trust: Woodruff v. Jabine (Ark.),
15 S. W. 830; Eyan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696, Hunt, J.,
dissenting, reversing 25 Barb. 440. Contra, Lamborn v. Watson, 6
Har. & J. 252, 14 Am. Dec. 275, where the decision seemed to be
based somewhat on the form of the pleadings: Miltenberger v. Morri-
son, 39 Mo. 71. Compare, also, Sherrill v. Crosby, 14 Johns. 358,
where a bystander at a sale bought the land on the suggestion of the
officer conducting it, who intimated that he would like some one to
buy it for the benefit of the execution debtor, but where the by-
stander made no promise to hold for the benefit of the judgment
debtor. Moreover, in some decisions, it is further held that the mere
repudiation of such agreement after the cestui que trust has re-
lied upon it and refrained from taking part in the sale and from
redeeming the land from the sale if redemption is allowable, is such
fraud as to warrant equitable relief therefrom: Wright v. Gay, 101
111. 233; Moorman v. Wood, 117 Ind' 144, 19 N. E. 739; Parker v.
Catron, 27 Ky. Law Eep. 536, 85 S. W. 740; Soggins v. Heard, 31
Miss. 426; Eose v. Bates, 12 Mo. 30; Leahey v. Witte, 123 Mo. 207,
27 S. W. 402, Brace and Gantt, JJ., dissenting; Wolford v. Herrington,
7 1 Pa. 311, 15 Am. Eep. 548, Agnew and Williams, JJ., dissenting.
('ontra, Donohoe v. Mariposa Land & Min. Co., 66 Cal. 317, 5 Pac. 49o.
In Walker v. Hill's Exrs., 22 N. J. Eq. 513, affirming 21 N. J. Eq. 191,
the court states the reason for the rule itself in the following lan-
guage: "It is the precedent contract with the defendant in execution
for a reconveyance and the fraudulent conduct of the purchaser in
•ection with the sale which have enabled him to acquire the
<ii), tor's property at an unconscionable advantage, that the court seizes
bold of as a ground of equitable relief." "The jurisdiction over trans-
actions of this nature rests on the ground of fraud and oppression
on the part of the purchaser, by means of which he has obtained the
. of the debtor at an inadequate price, under the assurance of
to reconvey to him or to hold the same subject to future
." The reason for the extension of the rule is said, in
gins v. Beard, :'.l Miss. 426, to be that the execution debtor "on
faith of such an agreement may have ceased hie efforts to raise
the money for the purpose of paying off the execution and thus pre-
lale of the property. It will not do to say that the party
moved merely by friendly or benevolent considera-
te, and may, therel ire, at his option, decline a compliance with his
Estate of Snook. 261
agreement. Such considerations constitute the foundation of almost
every trust, and the trustee should be held to account as nearly as
possible in the same spirit in which he originally contracted."
Again, where at the time a grantee of land took the legal title he
orally promised to hold the same on certain trusts, but then and there
had no intention of performing the trusts but made them with intent
to get and hold the legal title to his own use, a constructive tmst
arises and he becomes a trustee ex maleficio: Brison v. Brison, 75 Cal.
525, 7 Am. St. Eep. 189, 17 Pac. 689; Acker v. Priest, 92 Iowa, 610,
61 N. W. 235; Gregory v. Bowlsby, 115 Iowa, 327, 88 N. W. 822. See,
also, Manning v. Pippen, 86 Ala. 357, 11 Am. St. Rep. 46, 5 South.
572. Similarly, where one actively procures a transfer of land to
himself on an oral promise to hold for another, and afterward repudi-
ates the trust, a constructive trust arises on the ground that the trans-
feree had an active fraudulent agency and by false promises diverted
to himself the conveyance of the land: Lantry v. Lantry, 51 111. 451,
2 Am. Eep. 310; Davis v. Stambaugh, 163 111. 557, 45 N. E. 170;
Godschalk v. Fulmer, 176 111. 64, 51 N. E. 852. Contra, Walker v.
Locke, 5 Cush. 90. Likewise, a person who takes the legal title to
land in himself subject to an oral trust and to the further contem-
poraneous oral agreement that he would put the trust in writing, but
who afterward repudiated the trust and agreement, becomes a trustee
of the land ex maleficio: Hall v. Linn, 8 Colo. 264, 5 Pac. 641, where
the grantee was a creditor of the grantor, and received the grant for
the benefit of creditors; Wolford v. Herrington, 74 Pa. 311, 15 Am.
Rep. 548, Agnew and Williams, JJ., dissenting. Contra, Von Trotha v.
Bamberger, 15 Colo. 1, 24 Pac. 883, holding that the mere breach of
the promise to put the oral trust in writing did not by itself amount
to fraud, though it was of weight, in connection with other facts and
circumstances, as an element in fraud.
Furthermore, where the absolute character of a deed of land was
not known to or designated by the person paying the consideration
therefor, and another was named therein as grantee, it will be pre-
sumed that the deed was so written by fraud or mistake and without
intent to violate the statute of frauds, and oral evidence will be ad-
missible to show such facts to raise a trust in behalf of the person
paying the consideration: Siemon v. Schurck, 29 N. Y. 598, affirming
Sieman v. Austin, 33 Barb. 9. In Allen v. Arkenburgh, 2 App. Div.
452, 37 N. Y. Supp. 1032, affirmed without opinion, 158 N. Y. C97.
53 N. E. 1122, the court, however, said: "It is not enough that one
person has relied upon the promise of another with regard to the
purchase of a piece of property. The party seeking relief in such
case must go further, and show a change of position on his part, due
to such reliance. He must, in fact, prove the elements of an estoppel
in pais."
Constructive Fraud in General. — Where confidential relations pre-
vail between the parties to an oral trust and the trust is violated,
2G2 Coffey's Probate Decisions, Vol. 5.
the law presumes that the influence of the confidence upon the mind
of the person who confided was undue, and a case of constructive
trust arises, not, however, on the ground of actual fraud, but be-
cause of the facility for practicing it: Hayne v. Hermann, 97
Cal. 259, 32 Pac. 171 j Blount v. Carroway, 67 N. C. 396. See, also,
Allen v. Jackson, 122 111. 567, 13 N. E. 840; Moore v. Horsley, 156
HI. 36, 40 N. E. 323. In Pollard v. McKenney, 69 Neb. 742, 96 N.
W. 679, 101 N. W. 9, the court says: "If a party obtains the legal
title to property by virtue of a confidential relation, under such
circumstances that he ought not, according to the rules of equity
and good conscience as administered in chancery, to hold and enjoy
the benefits, out of such circumstances or relations a court of equity
will raise a trust by construction, and fasten it upon the conscience
of the offending party, and convert him into a trustee of the legal
title." So where a person occupying a fiduciary relation to the
owner of real estate takes advantage of the confidence reposed in
him by virtue of such relation to acquire an absolute conveyance
thereof without consideration, through a verbal agreement which he
promises to reduce to writing, as, for example, that the land con-
veyed to him is to be held in trust for some legitimate purpose, a
refusal under such circumstances to reduce the verbal agreement to
writing, or to reconvey the land to the real owner, is such an abuse
of confidence as to vest a court of equity with jurisdiction to inquire
thoroughly into the entire transaction, and to set aside the conveyance
or administer other proper relief: Bohm v. Bohm, 9 Colo. 100, 10 Pac.
790.
Moreover, the statute of frauds "does not cover the cases where
equity has always implied a trust from the proved relations and acts
of the parties, often accompanied by their oral declarations and agree-
ments as material facts, in order to prevent frauds": McCahill v.
McCahill, 11 Misc. Eep. 258, 32 N. Y. Supp. 836. Thus the rule that
the breach of an oral agreement to hold lands in trust for another is
not of itself alone such a fraud as to take the case out of the statute
of frauds, applies in its full force only where the parties sustain no
trust or confidential relations to each other, or where they are simply
contracting parties in the ordinary sense: Allen v. Arkenburgh, -
App. Div. 452, 37 N. Y. Supp. 1032, affirmed without opinion, 158
X. V. 697, 53 N. E. 1122.
Domestic Relation of Husband and Wife. — Tn California the rela-
tion of husband and wife is a confidential relation, and when this
confidence is violated by the refusal of one spouse to execute an oral
trust on which land was transferred to him or her, as a trust to re-
convey the land to the other spouse on request (Brison v. Brison, 75
Cal. 525, 7 Am. St. Hop. 189, 17 Pac. 689), or to hold the land for the
at use of the two spouses (Barbour v. Flick, 126 Cal. 628, 59 Pac.
I, or to bo hold it during their joint lives and afterward to hold
one-half thereof for the use of their daughter (Hayne v. Hermann, 97
Estate of Snook. 263
Cal. 259, 32 Pac. 171), a constructive trust arises which a court of
equity will enforce and to establish which parol evidence is admis-
sible. So in Thompson's Lessee v. White, 1 Dall. 424, 1 Am. Dec.
252, 1 L. Ed. 206, where a wife, desiring her husband to have the
use of her separate lands during his life, conveyed them to a third
party, who reconveyed them to herself and husband as joint tenants
under a parol promise on the part of the husband by will or other
means to settle the lands on her sisters and children, but the husband
died after the wife without having made such settlement, the court
enforced such oral trust in behalf of the beneficiaries thereof against
the heirs of the husband and a grantee of them with notice. In
Brison v. Brison, 75 Cal. 525, 7 Am. St. Eep. 189, 17 Pac. 689, the
court said: "If the relief cannot be granted in this case, we do not
see how it could be granted if an attorney should, by his parol
promise, induce his client to put the property in his name for some
temporary purpose, and then refuse to reconvey on the ground of
the absence of a written acknowledgment; and so of principal and
agent, parent and child, trustee and cestui que trust, etc."
In other states, however, where the title to land is put in the name
of a wife on a verbal trust to hold the whole or a part thereof for
her husband, the courts have overlooked the principle on which the
foregoing cases are decided and have refused to enforce the trust:
Murray v. Murray, 153 Ind. 14, 53 N. E. 946; Andrew v. Andrew,
114 Iowa, 524, 87 N. W. 494; Fitzgerald v. Fitzgerald, 168 Mass.
488, 47 N. E. 431; Gibson v. Foote, 40 Miss. 788. Similarly, where
a party conveyed land to his son in law on an oral trust to hold
for his wife, the grantor's daughter, the courts refused to enforce
the trust: Acker v. Priest, 92 Iowa, 610, 61 N. W. 235; Dilts v.
Stewart (Pa.), 1 Atl. 587. And where a husband conveys land to
his wife under a parol agreement that she should hold for the benefit
of their children, the trust is invalid and cannot be enforced: Moran
v. Somes, 154 Mass. 200, 28 N. E. 152.
Relation of Parent and Child. — In some decisions it is 'intimated
that an oral trust is enforceable as between parent and child on
the ground of constructive fraud: Brison v. Brison, 75 Cal. 525, 7 Am.
St. Eep. 189, 17 Pac. 689; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790.
This has also been directly held. Thus where a son, to enable his
mother to act as a redemptioner of certain land of his which had
been sold on execution, permitted her to take a judgment against him
by confession for certain moneys which she had advanced to him,
and she thereupon redeemed the land on an oral agreement to trans-
fer it to her son upon payment of the amount advanced by and
owing to her, which transaction the son entered into on the advice
of his mother's attorney, his former guardian, a court will compel
the mother to fulfill the trust: Wood v. Eabe, 96 N. Y. 414, 48 Am.
Rep. 640. Where a mother conveyed the family homestead to one
aon without consideration on a verbal trust that he would hold it for
264 Coffey's Probate Decisions, Vol. 5.
himself and the other children of his mother, and pay the taxes and
interest on the mortgage, receiving in return the rentals accruing on
the homestead and free board and lodging, and -where all parties
acquiesced in and fulfilled the arrangement until more than a year
after the death of the mother, when the grantee repudiated it, the
other heirs may compel a conveyance by him to them of their respec-
tive shares: Goldsmith v. Goldsmith, 145 N. Y. 313, 39 N. E. 1067.
In other decisions, however, the courts have failed to recognize
the existence of constructive trusts in similar cases. So where a
woman buys a lot and builds a residence thereon under an oral
agreement with her son that he shall enter into possession with his
family and live with her on the premises and have the title thereto
after her death, provided he would pay taxes and insurance and keep
the house in good repair and furnish her with all necessary care,
board and lodging during life, which he does, no trust arises in his
favor: Wittenbroek v. Cass, 110 Cal. 1, 42 Pac. 300. Where a person
at the time of buying land made an oral declaration that he pur-
chased it for his son, and his son was in exclusive possession during
his lifetime, and after his son's death reaffirmed the trust orally in
favor of his son's children who were not, however, in possession,
the children cannot enforce the trust as against the devisees of the
purchaser: Sherley v. Sherley, 97 Ky. 512, 31 S. W. 275. Also, Smith
v. Williams, 89 Ga. 9, 32 Am. St. Eep. 67, 15 S. E. 130. Where land
is conveyed without consideration to a man under a verbal trust to
hold for his children, in an action to enforce the trust, parol evidence
thereof cannot be received to establish it: Shafter v. Huntington, 53
Mich. 310, 19 N. W. 11. Where land was conveyed to a father and
mother without consideration under an oral trust that the remainder
in one-third should be conveyed to a certain son of theirs, reserving
a life estate to themselves, but in violation of the trust the spouses
conveyed the whole land to certain other persons without considera-
tion, a court of equity will not enforce the trust: Wright v. Moody,
116 Ind. 175, 18 N. E. 608. A verbal agreement between two sisters
at the time of purchasing a homestead that they would hold it for
the use of their mother during her life, created no enforceable trust:
Wormald's Guardian v. Heinze, 28 Ky. Law Eep. 1022, 90 S. W. 1064.
Where a son conveyed land to his father by absolute deed and imme-
diately afterward orally declared a trust therein in favor of one of
his brothers to whom he was largely indebted, no trust was created
then in which could be enforced against the grantee's heirs, nor would
the fact that the trust was declared at the instance of certain of the
heirs bind such heirs: Bartlett v. Bartlett, 14 Gray, 277.
Guardian and Ward. — While it is said in some decisions that
constructive fraud is assumed in case of dealings between guardian
and ward, warranting tin' interposition of a court of equity (MrClel-
lan v. Grant, B3 App. Div. 599, 82 N. Y. Supp. 208, affirmed without
opinion, 181 N. Y. 581, 74 N. E. 1119; Blount v. Carroway, 67 N. C.
Estate of Snook. 265
306. Compare, also, Easier v. Kisler, -2 "Watts, 323, 27 Am. Dec. 308),
yet in Rogers v. Simmons, 55 HI. 76, where a person represented to
the owner of certain lands that he desired to purchase them as guard-
ian for certain minors, and the owner accordingly sold them to him
at a reduced price, the court held that a trust could not be enforced
in the minor's favor.
Brothers or Sisters. — "The relationship existing between brothers
is not in itself a confidential relation to which the equitable doctrine
of constructive trusts is applicable": Hamilton v. Buchanan, 112 N. C.
463, 17 S. E. 159. Thus oral trusts existing between brothers or sis-
ters are held not to be enforceable: Hasshagen v. Hasshagen, 80 Cal.
514, 22 Pac. 294; Doran v. Doran, 99 Cal. 311, 33 Pac. 929; Stevenson
v. Crapnell, 114 111. 19, 28 N. E. 379; Peterson v. Boswell, 137 Ind.
211, 36 N. E. 845; McClain v. McClain, 57 Iowa, 167, 10 N. W. 333;
Loomis v. Loomis, 60 Barb. 22.
Priest and Parishioner. — Where a woman conveyed land to her
spiritual adviser subject to the verbal trust that if her absent son
should turn up he would convey the land to the son, the son may com-
pel the execution of the trust: McClellan v. Grant, 83 App. Div. 599,
82 N. Y. Supp. 208, affirmed without opinion, 181 N. Y. 581, 74 N. E.
1119.
Attorney and Client. — It seems that there is such confidence exist-
ing between an attorney and his client, that the refusal of an attor-
ney to execute an oral trust in lands affords ground for relief against
him as a trustee ex maleficio on the ground of constructive fraud:
McClellan v. Grant, 83 App. Div. 599, 82 N. Y. 208, affirmed without
opinion, 181 N. Y. 581, 74 N. E. 1119; Blount v. Carroway, 67 N. C.
396. So where an attorney bought in land at an insolvent sale
under a verbal agreement with his clients to buy for their use
and with money furnished by them, the cestui que trust may enforce
the trust as against the attorney: Broder v. Conklin, 77 Cal. 330, 19
Pac. 513. Where a grantor gave orders to his attorneys to make a
deed of certain land to his wife, and after he left their office they
made the deed to a certain third person instead, adding in explana-
tion that they did so to avoid any suspicion of the deed's being made
to defraud creditors, oral evidence is admissible to show that the
grantee held the land in trust for the grantor's wife to whom he
had intended to grant it: Fischbeck v. Gross, 112 111. 208.
Principal and Agent. — Where a man employs an agent by parol
to buy land, who buys it accordingly, and no part of the considera-
tion is paid by the principal and title is taken in the agent, and
there is no written agreement between the parties, the principal can-
not compel the agent to convey the estate to him: Dorsey v. Clarke,
4 Har. & J. 551. A contrary intimation, however, is found in Brison
v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689.
266 Coffey's Probate Decisions, Vol. 5.
Partners and Copartners. — A parol agreement for a partnership in
real estate as such cannot be shown to create a trust in land held
by one of the partners under an absolute deed for the benefit of the
other partners; and the fact that the parties making the agreement
were at the time engaged in a mercantile partnership does not take
it out of the statute of frauds: Bird v. Morrison, 12 Wis. 138. So
where one partner conveys land to his copartner with a covenant of
warranty, parol evidence is not admissible to rebut the presumption
that the estate is held by the grantee for his own use: Rogers v.
Ramey, 137 Mo. 598, 39 S. W. 66.
Cotenants or Joint Tenants. — Where tenants in common convey to
each other certain portions of the common lands, and to one of them
was conveyed a larger portion than to the other under a parol trust
that the former would hold the excess of the part transferred to
him over his proper share in trust for the other, such trust is unen-
forceable: Barr v. O'Donnell, 76 Cal. 469, 9 Am. St. Rep. 242, 18 Pac.
429. Similarly where one joint tenant conveys land to his joint
tenant with a covenant of warranty, parol evidence is not admissible
to rebut the presumption that the estate is held by the grantee for
his own use: Rogers v. Ramey, 137 Mo. 598, 39 S. W. 66. Further-
more, where one who has been a cotenant of lands which had been
sold on foreclosure purchased them from the purchaser at foreclosure
under a verbal trust to hold them in trust for his former cotenants
as well as for himself, the trust is unenforceable: Watson v. Watson,
198 Pa. 234, 47 Atl. 1096.
In New York, however, in Allen v. Arkenburgh, 2 App. Div. 452,
37 N. Y. Supp. 1032, affirmed without opinion, MS N. Y. 697, 53 N. E.
1122, the court holds that the statute of frauds "does not apply
where there is a trust or confidential relation with regard to the prop-
erty itself, where there is a community of interest between the own-
ers, and where the promise of one relates to the vested interests of
all," and that therefore where in a suit in partition the land involved
was ordered sold and it appeared to the cotenants that their inter-
would be prejudiced by a sale at the time ordered, and one of
them offered to and did bid in the property for the benefit of the
whole and coupled this offer with the suggestion that the remainder
do not bid against him, which suggestion was heeded at the sale, he
holds (he title in trust for the other cotenants and they may enforce
the trust against him.
Debtors and Creditors. — Tn most states narol evidence is always ad-
ible to show that an absolute deed of land was taken merely as
rity for the performance of an obligation, and i* in tact a mort-
gage-: Patton v. Beecher, 62 Ala. 579; Spies \. Price, 91 Ala. L66, 8
Smith. 405; Buckman v. Alwood, 71 Til. 155; Wright v. Gay, 101 111.
Campbell v. Dearborn, 109 Ma^s. 130, \1 Am. Rep. 671; Barber
v. Milner, 13 Mi< h. 248, 5 N. W. 92; Morrow v. Jones, 41 Neb. b67,
Estate of Snook. 267
60 N". W. 369; Hodges v. Tennessee Marine & F. Tns. Co., 8 N. T.
416; Sturtevant v. Sturtevant, 20 N. Y. 39, 75 Am. Dec. 371; Bork
v. Martin, 132 N. Y. 280, 28 Am. St. Rep. 570, 39 N. E. 584; Appeal
of Sweetzer, 71 Pa. 264. So where an absolute deed of lands is made
to grantees to indemnify them against any loss by reason of a con-
tract of suretyship on which they were sureties, it is a mortgage,
and parol evidence is admissible to show that fact and that the lia-
bility to indemnify against which the mortgage was given has been
discharged without damage to the mortgagees: Moore v. Wade, 8
Kan. 380. "Where a person acquires the legal title to the land of
another through legal proceedings — first by writ of summons and at-
tachment, and then by writ of entry — pursuant to an understanding
that he would hold the property as security for what should upon
final settlement appear to be due him, parol evidence is admissible
to show such understanding and that he therefore held as mortgagee:
Potter v. Kimball, 186 Mass. 120, 71 N. E. 308.
Parol evidence is also admissible to show that an absolute transfer
of land from one person was in fact intended as a mortgage of land
by and in behalf of another person. Thus a sheriff's deed to a pur-
chaser at a sheriff's sale of lands may be shown to be a mortgage
by parol: Eeigard v. McNeill, 38 111. 400. And where a person, pur-
suant to an oral agreement in that behalf, advanced the money requi-
site to make the first payment for land and took the title in his own
name, but made such payment jointly for himself and another, and
took the title as security, thus in effect loaning one-half of the money
paid to such other person and paying it to the vendor as the other's
money, a trust in the land arose in favor of the other person: Towle
v. Wadsworth, 147 111. 80, 30 N. E. 602, 35 N. E. 73. And where
the purchaser of land on credit, being afraid that he would be
unable to pay his notes given when due, procured another per-
son to pay the residue of the price and take the title to the land
in trust, to reconvey upon payment of the moneys advanced with
interest, the latter may be compelled to reconvey as agreed: Jones v.
McDougal, 32 Miss. 179. But where a person promises another to
purchase certain land for him at foreclosure sale and to hold the
title in trust for him and actually does so, but afterward refuses to
reconvey, the mere fact that the purchaser agre d to buy for the
otjier person will not convert the advances he made of his own money
into a loan, and thereby indirectly create a trust: Bourke v. Cal-
lanan, 160 Mass. 195, 35 N. E. 460, Allen and Knowlton, JJ., dissenting.
The courts have on many occasions discussed the rationale of the
rule admitting parol evidence to show that an absolute deed is a
mortgage. While it has sometimes been declared that this rule is a
mere arbitrary exception to the statutes of frauds founded on long
established usage, yet by the better opinion it is founded on the
idea that the violation by the mortgagee of the oral agreement pur-
suant to which he holds the property is a constructive fraud, giving
2CS Coffey's Probate Decisions, Vol. 5.
rise to a constructive trust. Thus in Patton v. Beeeher, 62 Ala. 579,
the court says: "The relation of debtor and creditor affords the
latter so many opportunities of taking advantage of the necessities
of the former that transactions between them are narrowly watched.
.... Once a mortgage, always a mortgage, is the maxim, and how-
ever broad is the power of contracting or of disposing, restraints
upon the equity of redemption, though deliberately imposed, are not
tolerated The principle cannot be violated by putting the convey-
ance in the form of an absolute deed. If the creditor accepts the
deed on no other consideration and for no other purpose than as a
security for a debt, a case of fraud and trust is made out, which re-
quires the interference of a court to give effect to the equity of
redemption if it is denied." And in Campbell v. Dearborn, 109 Mass.
130, 12 Am. Rep. 671, the court, although with less clearness, follows
the same line of reasoning.
In a few states parol evidence is not admissible to show that an
absolute deed was given for security only and is in fact a mortgage
(Thomas v. McCormack, 9 Dana, 108; McElderry v. Shipley, 2 Md. 25,
56 Am. Dec. 703), whether the deed was given directly from the
alleged mortgagors to the alleged mortgagee (Wolf v. Corby, 30 Md.
356), or was given by some third person to the alleged mortgagee
pursuant to an oral agreement between the alleged mortgagee and
the alleged mortgagor (Benge v. Benge (Ky.), 23 S. W. 668). This
rule is based on the ground that neither public interest nor the estab-
lished principles of equity jurisprudence will allow a court of justice
to admit parol evidence to show that an absolute deed was intended
as a mortgage: Thomas v. McCormack, 9 Dana, 108.
In Miscellaneous Relations. — In conclusion a few instances may be
mentioned where a constructive fraud has been declared, and one
where it has been denied, which do not come within any of the par-
ticular classes of confidential relations before discussed,, but where
the relation of confidence seems to have been a matter of fact rather
than an assumption of law.
Where a woman conveyed land to another by absolute deed with-
out consideration, on the parol promise of the latter to reconvey after
her impending marriage was accomplished, and this conveyance was
•1 by her betrothed husband and the person to whom she i
veyed it in order to avoid the operation of the law protecting a
woman's separate property owned by her at the time of her marriage,
and where she resided with and was on terms of intimate confidence
with such grantee, upon refusal to perform the trust, the marriage
having been solemnized, a court of equity will enfor. e the trust:
llani v. Catalani, 124 Ind. 54, 19 Am. St. Rep. 7::, 24 N. E. 375.
where a creditor of married people voluntarily assumed a con-
fidential relation toward them and represented that to protect their
hoine»tt;ad against their other creditors they should mortgage it to
Estate of Maynard. 2G9
him and he would cause it to be sold and bought in for their benefit,
and they, relying upon his representations, allowed it to be so mort-
gaged and sold and bought by the creditor, whereupon he repudiated
his promise to hold it for their benefit, a trust by construction arises
in the grantors' favor: Gruhn v. Kichardson, 128 111. 178, 21 N. E.
18.
But where an administrator bought at execution sale land belonging
to the decedent under a verbal promise to hold for the heirs and
apply the rent and profits to the liquidation of the amount advanced
by him, the heirs are not entitled to any relief by virtue of the
promise: Maroney v. Maroney, 97 Iowa, 711, 66 N. W. 911.
In the Matter op the Will op MARY A. MAYNARD,
Deceased.
[No. 8,459; decided October, 1909.]
Fraud and Undue Influence. — In Pleading Fraud and Undue Influ-
ence, it is not sufficient to state their nature, but the facts should
be alleged; and they should be stated with certainty and expressly
connected with the testamentary act.
Fraud and Undue Influence. — Allegations of Fraud and Undue Influ-
ence should be as positive, precise, and particular as the nature of the
case will allow.
Undue Influence. — The Mere Fact that the Beneficiary in a Will
had an opportunity to procure a will in his favor, or that he had a
motive for the exercise of undue influence, does not raise a presump-
tion of its exercise.
Undue Influence — Pleading. — The Exercise of Undue Influence must
be directly pleaded as bearing upon the testamentary act.
Undue Influence, 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
act.
Undue Influence. — 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.
"William 0. Minor and Richard B. Bell, for the contestant.
Morrison, Cope & Brobeck, for the demurrer.
270 Coffey's Probate Decisions, Vol. 5.
COFFEY, J. In pleading fraud and undue influence, it
is not sufficient 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.
Allegations of fraud and undue influence should be as posi-
tive, 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 presump-
tion of its exercise. Such exercise must be directly pleaded
as bearing upon the testamentary act.
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 di-
rectly upon the testamentary acts.
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: Estate of Clara
Harris, 3 Cof. Pro. Dec. 1.
The kind of undue influence that will destroy the instru-
ment must be such as in effect destroyed the testator's free
agency, and overpowered his volition at the time of the
making of the will: Estate of Motz, 136 Cal. 558, 69 Pac.
294.
Estate of J. C. G. STUART, Deceased.
[Decided April, 1909.]
Estate of Fifteen Hundred Dollars — Setting Apart to Widow. —
in I IH9 of the Code of Civil Procedure, as it now stands, does
not authorize the court to set apart an estate under fifteen hundred
dollars for the joint benefit of the widow and children; but the whole
.it must be assigned to the widow, if there is one.
Aitken & Ail ken, John R. Aitken, Frank W. Aitken.
Power of court to set apart estate under fifteen hundred
dollars to the widow and children under section 1469, Code
of Civil Procedure.
Estate of Ortiz. 271
COFFEY, J. Until 1897, the section provided that the
court should assign the estate "for the use and 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 he assigned "to the widow of the deceased, if there be
a widow."
The provision of the former section was as follows: That
the court should assign the estate "for the use and support
of the 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 eourt 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
formerly 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."
In the Matter of the Estate of CELEDONIO ORTIZ,
Deceased.
[No. 6,270; decided October 1, 1888.]
Distribution — Death of Heir Pending Administration. — Manner of
distribution where an heir or devisee dies pending administration
and his estate is unsettled at the time of distribution.
Distribution. — Form of Decree for Partial Distribution where an
heir or devisee dies pending administration.
Edward J. Pringle, Sr., for Applicant.
COFFEY, J. Where an administrator dies pending ad-
ministration, and a new administrator is appointed, and the
lm 1 Coffey's Probate Decisions, Vol. 5.
first administrator is one of the heirs, should this estate be
kept open until the estate of the deceased administrator's
estate is administered and distributed and let his heirs go
with the decree of distribution to the first estate, or let the
first estate continue and distribute the share of the deceased
administrator to "his estate"?
Answer: If, while the administration of the estate of A
is pending, B, an heir, legatee or devisee, should die, the
general practice in department No. 9 was to administer the
estate of B, and to distribute the interest which B had in the
estate of A to the persons entitled thereto. Those persons
then apply in the estate of A for distribution to them of the
share to which they are entitled as successors in interest of
B. The last estate should be distributed first ; otherwise the
court cannot, without a decree of distribution in the estate
of B, know who are the successors in interest of B. This was
the rule declared and adopted in the Estate of Cronin, Myr.
Pro. Rep. 252.
One exception to this rule was in the estate of Dr. Levi
C. Lane, founder of the Lane Hospital. He left a will by
which he gave all his estate to Pauline C. Lane, his wife,
and appointed her and Dr. Taylor executrix and executor.
She died pending the administration, leaving a will in which
she appointed Thomas I. Bergin and R. II. Lloyd executors.
Those gentlemen claimed that the distribution of the estate
should be to them as executors of the last will and testament
of Pauline C. Lane, in trust for the persons beneficially en-
titled thereto, and this was agreed to by the court, department
9 : Estate of Levi Cooper Lane, No. 26,571.
The Cronin case was decided December 31, 1879. John
nin died testate April 1, 1872, seised of real estate. A
portion of the estate was devised to his wife, Johanna Cronin,
who subsequently died testate, and administration of her
ite was also pending. Both estates were ready for dis-
tribution. The direction of the court was asked as to the
proper mode of distribution; that is whether the interest of
the estate of Johanna Cronin in the estate of John Cronin,
acquired by her through the will of her husband, should be
Estate of Ortiz. 273
distributed, in the distribution of the estate of John Cronin,
to the executor of the will of Johanna Cronin, or to the
devisees named in the v\ill of Johanna Cronin.
On these facts Judge Myrick rendered the following
opinion: "It is not the province of an executor or adminis-
trator to take title on distribution ; he administers upon the
title of the testate or intestate, and the object of his adminis-
tration is to pay the debts and ascertain who is entitled to
the surplus. The proper course to pursue in these cases is.
to close the estate of Johanna Cronin, by having distribution
of her estate, including her interest in the estate of John
Cronin, to her devisees, and then let those devisees go with
the decree of distribution to the estate of John Cronin. and
apply to have the interest of Johanna Cronin in the estate of
John Cronin distributed to them as successors in interest of
Johanna Cronin as found in the decree of distribution of her
estate."
This course was pursued, and thus both estates were disposed
of.
The same principles would apply, as well to the estates of
intestates as of testates.
The judge who decided the Cronin case, in an opinion
written by him while he was on the supreme bench, sug-
gested that it was impracticable to carry out the course he
indicated in the Cronin case.
The practice now pursued in the probate department was
adopted after discussion in the Estate of Celedonio Ortiz (old
number 6270), the question arising on the death of heir pend-
ing settlement of father's estate.
Must the share be distributed to heir's estate, or await
final distribution in the heir's estate, that the tatter's heirs
at law may be first ascertained?
The probate department held in accord with the argument
of the late Edward J. Pringle, subsequently supreme court
commissioner, that partial distribution might be made to the
personal representatives of the decedent in the junior estate
to be held pending its administration for the persons ascer-
tained therein to be entitled to succession.
Prob. Dec, Vol. V— 18
274 Coffey's Probate Decisions, Vol. 5.
The same view was adopted in the Estate of McLaughlin,
wherein the Hon. A. L. Rhodes, former chief justice of the
supreme court, subsequently judge of the superior court of
Santa Clara county, and now practicing therein, contended
that the Cronin case enunciated an incorrect, as well as an
inconvenient, if not impracticable, principle, and that the
true rule was that applied in the Ortiz case. The points and
authorities and opinion in these cases were published in the
old "Law Journal" of September 28, 1890, and republished
September 29, 1891, and the decree of partial distribution
in the Estate of Ortiz to the heirs at law of a daughter dying
pending the settlement of the father's estate, prepared by Mr.
Pringle, October 1, 1888, was published in "The Recorder"
December 16, 1903, as a precedent.
Decree of Partial Distribution to the Heirs at Law of Virginia
Ortiz Turner.
Daniel Turner, administrator of the estate of Virginia
Ortiz Turner, deceased, having heretofore filed herein on the
tenth day of July, 1888, a petition for partial distribution of
the share or portion of the said Virginia Ortiz Turner of the
personal property of the estate of the said Celedonio Ortiz,
deceased, in the state of California, upon his giving bonds
with security for the payment of the due proportion of the
debts of the estate of the said Celedonio Ortiz.
And said petition for distribution coming on this day
regularly to be heard, proof having been made to the satis-
faction of the court that due and legal notice of the said
hearing of the said petition for partial distribution had been
given in the manner and for the time heretofore ordered and
directed by this court, and it appearing that on the twenty-
sixth day of September, 1887, letters testamentary were duly
ted to Vicente Cagigal y Pezuela, as the executor of the
Last will and testament of the said Celedonio Ortiz, deceased,
thereinbefore duly admitted to probate, that an inventory of
Baid estate of Celedonio Ortiz had been filed by the said
Vicente Cagigal y Pezuela, and appraisement made and died
herein, and it appearing that the publication of notice to the
creditors of tin- Baid estate of < leledonio Ortiz to presenl th< ir
claims against the said estate was made in accordance, with
Estate of Ortiz. 27.3
the order of this court in that hehalf duly made herein ; and
that the first publication of said notice to creditors was made
on the fifth day of October, 1887, and it appearing that the
said estate of Celedonio Ortiz is but little indebted in the
state of California, and that the share of the estate of Vir-
ginia Ortiz Turner, as hereinafter described, may now be
distributed, without loss to the creditors of the estate of the
said Celedonio Ortiz, and it appearing that more than four
months have elapsed since the issuance of said letters testa-
mentary to the said Vicente Cagigal y Pezuela, as aforesaid,
that the said Virginia Ortiz Turner, a daughter of the said
Celedonio Ortiz, deceased, died intestate on the sixteenth
day of April, 1887, in the republic of Mexico, being at the
time of her death a resident of the city and county of San
Francisco, state of California, and leaving estate in said city
and county, and that the said estate consists of the interest
of the said Virginia in the estate of her father, the said Cele-
donio Ortiz, who died on the fifth day of April, 1887, that
heretofore, to wit, on the eleventh day of June, 1888, Daniel
Turner, the husband of the said Virginia, upon due applica-
tion to this court, was appointed the administrator of the
estate of the said Virginia Ortiz Turner and that the said
Daniel Turner thereupon duly qualified as such administrator
and entered upon the duties of the said administration, and
is still the duly qualified and acting administrator of the
estate of the said Virginia Ortiz Turner, deceased.
That the said Virginia Ortiz Turner is the same person
named in the will of said Celedonio Ortiz, deceased, as an
heir and legatee of the said decedent under said last will and
testament, and was under the said will entitled to one-eighth
(Ys) of the estate of the said Celedonio Ortiz, deceased.
And it appearing that a bond in the penal sum of $2,500
is sufficient to protect creditors of the said estate of Celedonio
Ortiz, deceased, from any injury that may arise from the
distribution of the hereinafter described personal property.
And it appearing that partial distributions have heretofore
been made to all the other devisees of the said Celedonio
Ortiz, deceased, of their respective shares of the personal
property of the estate of said Celedonio Ortiz, deceased, in
the state of California, and that the share of the said per-
276 Coffey's Probate Decisions, Vol. 5.
sonal property to which the estate of the said Virginia
Ortiz Turner is entitled consists of moneys to the amount
of $556.67. and seventy-five (75) shares of the capital stock
of the Spring Valley Waterworks, and nine (9) and three-
eighths (%) shares of the capital stock of the California
Powder Works, and one-eighth (%) part of forty (40) shares
of the capital stock of the Security Savings Bank or certificate
for installment No. 1 on subscription for forty shares of the
capital stock of the said Security Savings Bank, and it ap-
pearing that there has accrued upon such distributive shares
of the said Virginia Ortiz Turner since the said partial dis-
tribution to the other devisees dividends on stock as follows,
viz. :
Of the Spring Valley Waterworks the sum of $225.00
Of the California Powder Works the sum of 56.34
Of the Security Savings Bank the sum of 21.87
all amounting to the sum of $303.21
which have been received and are now held by the said Vi-
cente Cagigal y Pezuela, as the executor aforesaid :
Now, therefore, it is hereby ordered, adjudged and decreed
that the said personal property, viz. : The sum of $556.67, and
M-venty-five (75) shares of the capital stock of the Spring
Valley Waterworks, and nine (9) and three-eighths (%)
shares of the capital stock of the California Powder Works,
and one-eighth (Vis) part of forty (40) shares of the capital
stock of the Security Savings Bank, or certificates for in-
; ailment No. 1 on subscription for forty shares of the capitnl
ek of the said Security Savings Bank and the following
dividends of stock, viz.:
Of the Spring Valley Waterworks the sum of $225.00
' )f the California Powder Works the sum of 56.34
Of the Security Savings Bank the sum of 21.87
be and the same is hereby distributed to the heirs at law of
the said Virginia Ortiz Turner, deceased, and that the pos-
Bession of the same be given by the said executor to the said
Daniel Turner, administrator of the estate of the said Vir-
ginia Ortiz Turner in trust for the purpose of the adminis-
tration of tin- estate of the said Virginia Ortiz Turner, de-
Estate of Noah. 277
ceased, and for the heirs at law entitled thereto, upon the
said Daniel Turner, administrator, giving the said bond of
$2,500 for the protection of the creditors of the estate of the
said Celedonio Ortiz, deceased.
Estate of JOEL NOAH, Deceased.
[No. 2,769; decided November 27, 1885.]
Homestead — Examination of Title in Setting Apart. — The superior
court, sitting in probate, has power to examine into the title to real
estate, so far as to enable it to determine whether property sought to
be set aside as a homestead is community or separate property.
Husband and Wife — Validity of Separation Agreement. — Deeds for
the separation of husband and wife are valid and effectual, both at
law and in equity, providing their object be actual and immediate,
and not a contingent or future, separation.
Husband and Wife — Effect of Articles of Separation. — Articles of
separation having been carried into effect in good faith by the hus-
band, and they having been freely entered into, and there being noth-
ing objectionable in them, the wife has no right, upon the husband's
death, to claim in character of his widow, it being against equity
and good conscience to set up such a claim.
Homestead — When Waived by Articles of Separation. — An agree-
ment amounting to a waiver, upon valuable consideration, of every
right a wife could have in her deceased husband's estate, is conclu-
sive against all her pretensions, and estops her from claiming a
probate homestead as well as any other property right.
Family Allowance — Test of Widow's Right. — The right of an appli-
cant for a family allowance may be tested by reference to her rela-
tions with the deceased and her right as wife to call on him for
maintenance during his lifetime.
Family Allowance — Relinquishment by Widow. — When there are no
children, the right of a widow to a homestead or family allowance may
be treated as a personal privilege, which she can relinquish.
Family Allowance — Right to, Purely Statutory. — The right to a
family allowance is founded upon the statute alone.
Family Allowance — Who are Members of Family. — The statute
embraces those who were the immediate family of the deceased —
278 Coffey's Probate Decisions, Vol. 5.
those who were by law entitled, up to his death, to look to him for
support and protection.
Family Allowance — Waiver by Separation Agreement. — A wife hav-
ing by her own act in entering into and carrying out an agreement
for separation abdicated her right as a surviving spouse is in no
sense a member of her deceased husband's family, and is not in a
position to invoke the bounty of the law.
Homestead — Purpose and Construction of Statute. — The object of
the law creating a homestead is of a humane character, and should
be held to apply fairly to all such cases as are within the equity
and spirit of the act, but not beyond this.
Homestead — Statutory Requisites. — Intended use, adaptation for
use, and actual residence, are essentials of a statutory homestead.
Homestead — What Property may be Set Apart. — A probate home-
stead cannot be set apart out of property that could not have been
dedicated as a homestead by the parties while living.
Homestead — Indivisible Property — Separate Estate. — Where the
property out of which it was asked to select a homestead was a
building entirely devoted to business purposes, not susceptible of
partition, of the appraised value of $25,000, and the separate property
of the deceased husband, it was held that the property not being
capable of division would have to be sold, and $5,000 of the proceeds
set apart for the use of the widow; that the property, being separate
estate, could be set apart only for a limited period, the title vesting
in the heirs, subject to the order; that it does not appear what
security the heirs would have for the return of the amount upon the
expiration of the period limited, and that for these reasons the appli-
cation should be denied.
The estate of Noah was in the supreme court in 73 Cal.
590, 2 Am. St. Rep. 834, 15 Pac. 290, and in 88 Cal. 468, 26
Pac. 361. All of the above propositions announced by Judge
Coffey were affirmed by the supreme court.
Estate of Lynch. 279
In the Matter of the Estate and Guardianship of CHAR-
LOTTE A. LYNCH, an Incompetent Person.
[No. 12,890; decided August 1, 1894.]
Incompetent Person — Allowance to Adult Son. — It is competent for
the superior court sitting in probate to grant an allowance from the
estate of an incompetent person for the support of her adult son.
Petition for allowance to the adult son of an incompetent
person under guardianship.
Seth Mann, for the petitioners.
COFFEY, J. The facts set forth in the petitions of Eu-
gene J. Lynch and C. S. Benedict, the guardian of said
incompetent, are taken as proved. It is established that Eu-
gene J. Lynch is unable to support himself and is a poor
person without any property of his own; that he is the only
child of the incompetent, and is twenty-four years of age.
That he has always been supported by his mother, and it is
her present desire that he continue to be supported out of
the funds of her estate, which is ample to provide for her
support and for his also, the surplus of annual income after
providing for the incompetent being from $6,000 to $8,000.
The sole question presented is : Has the court authority to
make such an allowance under the laws of this state?
The general rule under which the obligation to support
arises is stated in section 206 of the Civil Code. "It is the
duty of the father, the mother, and the children of any poor
person who is unable to maintain himself by work to main-
tain such person to the extent of their ability. The promise
of an adult child to pay for necessaries previously furnished
to such parent is binding."
The powers and duties of guardians, so far as they are
concerned in this question, are denned by sections 1768 and
1770 of the Code of Civil Procedure as follows:
Section 1768: "Every guardian appointed under the pro-
visions of this chapter, whether for a minor or for any other
person, must pay all just debts due from the ward, out of
his personal estate, and the income of his real estate, if suffi-
280 Coffey's Probate Decisions, Vol. 5.
cient ; if not, then out of his real estate, upon obtaining a&
order for the sale thereof, and disposing of the same in the
manner provided in this title for the sale of real estate of
decedents."
Section 1770 : ' ' Every guardian must manage the estate of
his ward frugally and without waste, and apply the income
and profits thereof, as far as may be necessary, for the com-
fortable and suitable maintenance and support of the ward
and his family, if there be any ; and if such income and
profits be insufficient for that purpose, the guardian may sell
the real estate, upon obtaining an order of the court therefor,
as provided, and must apply the proceeds of such sale, as far
as may be necessary, for the maintenance and support of
the ward and his family, if there be any."
In the absence of statute and under the original practice
when the estates of lunatics were under the jurisdiction of
courts of equity, no question could arise as to the propriety
of the allowance in the present case. The chancellor was
guided by the natural justice of the circumstances and by
what the lunatic himself would have done had he been of
sound mind. Not only was support granted to his next of
kin and those who had a right to look to him for support,
but also out of the surplus income of his estate others were
granted maintenance who had no legal claim upon him, if it
satisfactorily appeared to the chancellor that the lunatic him-
self would have provided for the support of such persons had
he been of sound mind: In re "Willoughby, 11 Paige Ch. 257;
In re Ileeney, 2 Barb. Ch. 326.
(Adopted adults.) In these cases it usually appears lhat
the lunatic has before the period of his incompetency as-
sumed the duty of support toward the needy persons and by
words or actions has indicated an intention to continue such
support.
The case of Ex parte Whitbread, 2 Mer. 09, is frequently
cited. In that case allowances were made to brothers and
sisters upon the ground that the lunatic himself would have
done so. To the same effect: In re Frost, L. R. 5 Ch. A pp.
699 (needy collateral relatives for whom the lunatic while
sane had expressed an intention to make provision).
Estate of Lynch. 281
In Ex parte Haycock, 5 Russ. Ch. 154, an allowance was
made for illegitimate children.
In these cases the question has always been whether an
allowance may be properly granted to collateral kindred and
persons whom the lunatic is not legally bound to support.
It is conceded without question that a needy adult child or
person whom the lunatic is under obligation to support should
be maintained out of the surplus income of the estate: See
In re "Willoughby, 11 Paige Ch. 257, Hambleton's Appeal,
102 Pa. 50, 55, and cases supra. In the absence of statute,
therefore, it must be concluded that the allowance in the
present case would be an eminently proper one, and far
within the powers of the court.
Under the statutes, courts have evinced a disposition to be
liberal in construction and to be guided as far as possible
by equity rules.
The statute of Pennsylvania is similar to and perhaps more
limited and stringent than our own. It provides that the
committee of a lunatic ''shall, from time to time, apply so
much of the income thereof as shall be necessary, to the pay-
ment of his just debts and engagements, and the support and
maintenance of such person and of his family; and for the
education of his minor children": 2 Brightly 's Purdon's Di-
gest, p. 1128, par. 25.
Under this statute, in Hambleton's Appeal, 102 Pa. 50, 53,
the facts were as follows: An old man, a widower and with-
out children, having a large estate, took a nephew and his
family to live with and take care of him and his estate, pay-
ing the nephew a salary, and supporting the nephew and his
family as part of his household. Subsequently he became
afflicted with senile dementia, though retaining sound physi-
cal health, and he was adjudged a lunatic. A committee of
his estate was appointed by the court, and the nephew was
appointed committee of the person. The latter fulfilled his
duties satisfactorily, and, by order of court, received from
the committee of the estate a sufficient monthly allowance to
continue the household in the same manner as before the
lunacy, and also to pay his salary as before. Upon the audit
of his account, the auditor and the lower court surcharged
him with one-half the cost of food for the household and the
282 Coffey's Probate Decisions, Vol. 5.
wages of one servant. On appeal the supreme court held that
the committee had done what it might reasonably be supposed
the lunatic would have continued to do if he had retained
his sanity, and what was apparently best adapted for the
peace and comfort of the lunatic; and that it was, therefore,
error to surcharge the committee with any cost of so main-
taining the lunatic's household, including the committee and
his family. In this case Gordon, J., in delivering the opinion,
said:
"It was the duty of the court of common pleas to appro-
priate, in accordance with the directions of the act of as-
sembly, so much of the income of the estate of William Neal.
the lunatic, as might be sufficient, not only for his own sup-
port, but also for the support of his family, and as the income
of his estate was ample, sufficient to meet any demand that
might be reasonably made upon it, so should the allowance
have been large enough to meet both his and their wants.
Under such circumstances, it is not the business of the court
to arbitrarily interfere and determine who shall constitute
the lunatic's family, or what shall be its appointments, for,
ordinarily these things have been previously fixed and settled
by the lunatic himself at a time when he had both the power
and ability to adjust his own affairs
"What, then, under the circumstances, was the duty of
the court? We answer, simply to maintain and carry for-
ward the affairs of William Neal as they were when his mind
failed him; to do that which it might reasonably suppose he
would have continued to do had he retained his sanity."
And he cites, with approval, the case of Ex parte Whit-
bread, 2 Mer. 99. Thus even under the statute the doctrine
of the leading cases is invoked; that is, that the court will
do what it may be reasonably supposed the lunatic would
have continued to do had he retained his sanity.
In the present case it is plain that Mrs. Lynch would have
continued to support her son as she always had done. She
has constantly expressed her intention to do so. Before be-
coming incompetent and in her letter to Mr. C. S. Benedict,
her guardian, which is only one of several of the same im-
port, she requests that Eugene be allowed to want for noth-
ing. Eugene is her only child, dependent upon her for sup-
Estate of Lynch. 283
port, and with herself constituting the family which she
maintained and supported prior to her insanity.
The statute authorizes the continuance of this support by
the guardian (Code Civ. Proc, sec. 1770), and enjoins it
generally as a duty upon all persons: Civ. Code, sec. 206. It
is to be presumed that Mrs. Lynch, if sane, would have per-
formed this legal and moral duty; and the court under the
doctrine of Hambleton's Appeal, supra, and Ex parte Whit-
bread, supra, will see that the duty is performed after her
affliction kas rendered her legally incompetent to perform it
herself.
The provisions of the code are to be liberally construed
with a view to effect its objects and to promote justice: Code
Civ. Proc, sec. 4. Such a construction will hardly exclude
a helpless son from the "family" of his mother: See Spencer
v. Spencer, 11 Paige Ch. 160.
In Halsey's Appeal, 120 Pa. 209, it is said that the family
of the lunatic should be supported although they consist of the
mistress and illegitimate children of the lunatic. And in
Elwyn's Appeal, 67 Pa, 367, 369, an allowance of $240 per
annum was made for the support of a helpless sister of the
lunatic whom he had always maintained, and although she
was not a member of his family in the stricter sense, the
allowance is recognized as a just and proper one. These de-
cisions are all rendered under the statute above cited, which
provides for the support of the "family" of the lunatic.
Family allowances in estates of decedents are specially re-
stricted to minor children : Code Civ. Proc, sec. 1464. They
are not so restricted in guardianship matters: Code Civ.
Proc, sec. 1770. And the provisions concerning estates of
decedents should not be imported into the special provisions
concerning guardianship except so far as they relate to prac-
tice (Code Civ. Proc, sec 1808), unless some particular pro-
vision is made to that effect: See Code Civ. Proc, sec 1789.
Comfortable and suitable maintenance and support is pro-
vided for by the statute: Code Civ. Proc, sec 1770. And
where the estate is ample, the comfort of the ward should be
the chief care of the guardian and of the court rather than
the hoarding of the income for the heirs of the unfortunate :
Hambleton's Appeal, 102 Pa. 50, 54.
284 Coffey's Probate Decisions, Vol. 5.
AVill the comfort of Mrs. Lynch be promoted if Eugene is
deprived of the means of support she has always given him?
If she should learn that he was in want, would it not tend
to increase her malady? Her state of mind is clearly shown
by the letter written by her to "Sir. C. S. Benedict. Her com-
fort can be secured only by making this allowance to her son.
If it is denied, the effect upon her mind and health may be
very serious.
There is still another provision of our statute which en-
joins the payment of an allowance for his support to Eugene
Lynch. Section 1768, Code of Civil Procedure, provides that
every guardian "must pay all just debts due from the ward."
The words "debts due," like nearly all words, have both a
general and special meaning, and are capable of a broad and
liberal, or of a narrow and restricted, construction. The con-
struction to be given these words must depend upon the con-
text (Code Civ. Proc, sec. 16), bearing in mind the general
rule of liberal construction: Code Civ. Proc, sec. 4.
In its restricted sense a debt due is a fixed sum of money
owed upon contract ; in its general sense it signifies something
owed ; all that is due a man under any form of obligation or
promise: Bouvier's Law Dictionary. Coke says that debitum
signifies not only a debt for which an action of debt lies, but
generally any duty to be yielded or paid: Anderson's Law
Dictionary, tit. "Debt," It is any kind of a just demand.
One who is under obligation to discharge some duty, or to
pay damages for its nonperformance, is a debtor, as really as
one who is under obligation by bond to pay a sum of money:
New Haven Sawmill Co. v. Fowler, 28 Conn. 108. See, also,
Newell v. People, 7 N. Y. 124; Kimpton v. Bronson, 45 Barb.
i 1 1 v. Bank of Sing Sing, 24 N. Y. 290 ; Carver v.
Braintr( e .Mfg. Co., 2 Story, 432. See, also, Code of Civil Pro-
cedure, section 1643, where the phrase "debts of the estate"
is made to include "all other demands against the estate."
In sectioE 1768, Code of Civil Procedure, the words "debts
due" cannot be confined to mere contractual obligations, for
then it' the guardian's authority is to be measured by this
tioii be could nol discharge a claim for damages for the
lunatic's tort, although the lunatic is civilly liable therefor:
Code, sec. 41. The guardian's only statutory authority
Estate of Lynch. 285
to pay such a claim is contained in section 1768, Code of
Civil Procedure. Therefore, construing these two sections
together, we must conclude that the words "debts due" are
to be given their broader and more liberal meaning.
Why may we not also construe section 206, Civil Code, and
section 1768, Code of Civil Procedure, together? The former
imposes a plain legal and moral duty, which has been the law
of England since the reign of Queen Elizabeth : Schouler on
Domestic Relations, sec. 237.
This duty of parent to a poor and helpless child is a deb-
itum as "justly due" to the child as any obligation evidenced
by indenture and seal.
Let us suppose a case : A weak and sickly child, blind, and
utterly helpless, has lived to the age of majority under the
fostering care of a wealthy mother. The child has no other
relatives. She has been, with maternal care, placed in an
institution at some distance from her mother's home, in the
hope that she may be benefited by expensive medical treat-
ment in a scientific environment. She is the sole heir ap-
parent to her mother's large wealth. Her mother becomes
insane. Do the laws of this state declare that this helpless
person shall become a beggar, dependent upon public charity,
and destined to mental torture perhaps worse than death?
The legislature of this state could never have intended such
a narrow and stringent construction of the words "debts
due" and "family."
A liberal construction "with a view to effect its objects
and promote justice," will never effect such an object nor
promote such injustice.
In conclusion, a thorough search of the authorities has been
made, but the decisions are few. All of the American and
most of the English cases are herein cited, and no cases have
been found which in the slightest degree weigh against the
making of the allowance in question, all of the decisions be-
ing based upon or influenced by the liberal doctrine of equity.
286 Coffey's Probate Decisions, Vol. 5.
Estate of JOSEPH EMERIC, Deceased.
[No. 8,672; decided November 8, 1890.]
Charity. — A Legacy for the Restoration of an Old Church and a
town hall is a charitable use.
Charity. — The Term "Charity" is a Broad One, and may be applied
to almost anything that tends to promote the general well-being and
well-doing of the human race.
Charity — Gift Within Thirty Days of Death. — A legacy for a char-
itable use, contained in a will executed within thirty days of the
testator's death, is void under section 1313 of the Civil Code.
E. J. Pringle, for the executors.
COFFEY, J. The question is whether the bequest in
Joseph Emerie's will to the town of Neoules, Department of
Var, France, for the restoration of the old Roman Catholic
Church and the Town Hall, is valid under the laws of Cali-
fornia.
Section 1313 of the Civil Code of California contains a
restriction upon the power of devising property or money to
charitable uses, and reads as follows: "No estate, real or per-
sonal, shall be bequeathed or devised to any charitable or
benevolent society, or corporation, or to any person or per-
sons 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 And all dispositions of property made con-
trary hereto shall be void, and go to the residuary legatee
or devisee, next of kin, or heirs, according to law."
Joseph Emeric died on the twenty-second day of June,
1889, and his will bears date of June 7, 1889. If, therefore,
the legacy to the town of Neoules comes within the meaning
of "charitable uses" under this section of the code, it is void,
and would not be upheld by our courts. From an examina-
tion of the authorities I am satisfied that the legacy in ques-
tion is a. "charitable use," and therefore falls within the in-
hibition of 1 lie statute.
'I'll'' terra "charity" is a broad one. and has been hold to
mean any genera] public use. It may be applied to almost
Estate of Emeric. 2S7
anything that tends to promote the general well-being and
well-doing of the human race: Ould v. Washington Hospital,
95 U. S. 303, 24 L. ed. 450.
To ascertain the scope and meaning of the term "charity"
recourse is usually had to the statute of 43 Elizabeth, chap-
ter 4, which enumerates various kinds of charitable uses.
Whether or not that statute was adopted as the common law
in California, it is referred to by the American courts as
throwing great light on the question of what bequests are to
be considered as charitable within the meaning of the Ameri-
can codes and statutes, and most of the objects denominated
therein as charitable had been recognized by the common-
law cases decided before the statute. Among the things de-
clared to be charitable uses we find — beside hospitals, homes,
refuges and other obviously charitable objects — schools of
learning, scholarships in colleges, education and assistance of
tradesmen; the repair and. maintenance of bridges, cause-
ways, highways, harbors, forts, churches and public buildings.
And in Am. Asylum v. Phoenix Bank, 4 Conn. 172, 10 Am.
Dec. 112, it was said, that this enumeration contained in the
statute of Elizabeth is not exhaustive, and that "charity"
extends to all objects within the spirit and policy of the law.
In two English cases it has been held that gifts of money
to be expended in the "general improvement of particular
towns" comes under these bequests for charitable purposes:
Howse v. Chapman, 4 Ves. 542 ; A. G. v. Heelis, 2 Sim. & S. 67.
In a recent case the United States supreme court held that
where a sum of money was given to trustees "to keep and
preserve as a public edifice" a house of the testator contain-
ing books and works of art, "to be opened on certain days
to the general public as a library and art-room," the be-
quest was one for charitable uses: Jones v. Habersham, 107
U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401.
In Coggeshall v. Pelton, 7 Johns. Ch. 292. 11 Am. Dec. 471,
a legacy was left to the town of New Rochelle, for the pur-
pose of erecting a town hall for the transaction of the gen-
eral town business; held, this was a "charity" in the legal
sense of the word.
From an examination of these and other authorities I feel
that there can be no doubt that the legacy in Joseph Em-
2S8 Coffey's Probate Decisions, Vol. 5.
eric's will to the town of Neoules "to be expended as fol-
lows, to wit: $5,000 thereof to be expended under the direc-
tions of the majority of the members of the Town Council in
restoring and repairing the old Roman Catholic Church and
the building used as a Town Hall in said town, and the other
$5,000 to be paid out and distributed among the most worthy
and deserving poor of the said town according to the voice
of the majority of the Town Council," is a bequest for char-
itable uses ; and, as the will was not executed thirty days
before his death, this clause is clearly void under the provi-
sion of the code above quoted, and would not be enforced in
our courts.
As to What Constitutes a Charity, see the note in 63 Am. St. Rep.
248. Section 1313 of the California Civil Code, restricting testa-
mentary gifts to charities, applies to gifts to religious societies: Es-
tate of Hewitt, 94 Cal. 376, 29 Pac. 775; and also to the state uni-
versity: Estate of Royer, 123 Cal. 614, 56 Pac. 461, 44 L. R. A. 364;
People v. Jeffers, 126 Cal. 296, 301, 58 Pac. 704.
Estate of DAVID GOODALE, Deceased.
[No. 1,029; decided April 6, 1891.]
Homestead. — It is Because of Her Status that a Widow becomes
the object of the law's beneficence.
Homestead. — A Widow Failing to Apply for a Probate Homestead
Before Remarrying loses her right to a homestead out of her first
husband's estate upon marrying a second time.
Application by Ellen E. Stouder, formerly widow of David
Goodale, and subsequently married to John Stouder, also de-
ised, for a homestead. Opposed by children of Goodale.
J. II. Gove, for the petitioner.
Win. A. Plunkett and E. H. Wakeman, for Goodale chil-
dren.
Estate of Goodale. 289
COFFEY, J. Mrs. Ellen E. Stouder, the widow of John
Stouder, petitions for a homestead in the estate of David
Goodale. Mrs. Stonder was the widow of David Goodale
before her marriage to Stonder.
Petitioner claims that statutes, such as that under which
a probate homestead is given, should receive a broad and
liberal construction. This is admitted ; but the construction
for which petitioner contends would be a perversion. We
must construe the statute as it stands; not substitute a stat-
ute by a strained and false construction. To pursue the lat-
ter course would be to perpetrate a dangerous and vicious
piece of judicial legislation.
To show the liberality with which our supreme court have
interpreted the homestead law, petitioner quotes a passage
from Smyth on Homesteads, in which a case (probably Clem-
ents v. Stanton, 47 Cal. 60) is alluded to, where it was de-
cided that a declaration of homestead by a married woman
was properly acknowledged, although not acknowledged as
a conveyance of her separate real property by a married
woman was required to be acknowledged. But the home-
stead law did not require a declaration to be acknowledged
by a married woman, as she was required to acknowledge a
conveyance of her separate real property. The same law,
however, did require the abandonment of homestead to be
so acknowledged. The court's construction of the law seems
to be the only reasonable construction.
Petitioner's second point is a contention that any construc-
tion of the statute which bases the widow's right to a (pro-
bate) homestead upon her status as widow is too narrow.
But it is because of her status that she becomes the object
of the law 's beneficence. It must be remembered that we are
now considering a widow's right to a probate homestead.
Unless the status of widow is established, the court is power-
less.
As the court is compelled to set apart a homestead to the
widow when her status is proved, so the court is compelled
or constrained to refuse a homestead when that status cannot
be shown to exist.
While the petitioner was the widow of David Goodale she
had an unquestionable right to apply for a homestead. It
Prob. Dec, Vol. V — 19
290 Coffey's Probate Decisions, Vol. 5.
is not the fault of the law or of the court that she neglected
to exercise that right.
Petitioner now, as the widow of John Stouder, has an in-
disputable right to apply for a homestead from the estate
of Mr. Stouder.
"Whether Stouder has left a large estate, a small estate.
or any estate at all, cannot affect the decision of the legal
question involved in petitioner's application.
In petitioner's brief it is claimed by counsel that the prin-
ciple enunciated bj- this court in the Estate of Pickett, and
which principle was followed in two decisions by our supreme
court, has no application to the case at bar.
But this court decided in the Estate of Pickett (1) that
"widow" and "surviving wife" are synonymous terms; and
(2) that when a widow marries a second time she ceases to
be the widow of her first husband. The decision in the Es-
tate of Pickett on these two points is directly applicable to
the case at bar.
Petitioner's brief claims that there is nothing in section
1465, Code of Civil Procedure, or in any other section of
the code, basing the right to a homestead on the status of
widow.
But our supreme court has decided that a woman's right
to apply for a probate homestead depends upon her status of
widow: Estate of Boland, 43 Cal. 642; Estate of Moore, 57
Cal. 442-444.
Petitioner's point that the same condition of things exists
now which existed at the death of David Goodale, and that
"petitioner is clearly entitled to her homestead." is answered
by the suggestions already made and the authorities already
eiti d.
Petitioner assumes that a widow's right to hold more than
one homestead is questioned in this proceeding. It is not
d here that the same woman cannot receive more than
id. The law gives her the right to apply Tor a
homestead whenever she is a widow. But the application
mnsl be made each time in the estate of the last husband.
t ioner's counsel cites Miles v. Miles, 46 N. II. 261, 8S
Am. I 1 -^, to show that "surviving wife" and "widow"
are terms of ption only, not terms of limit;'.! ion. Miles
Estate op Collins. 291
v. Miles is not in point. It is a decision construing a statute
very unlike ours. But if it were in point it would be over-
come by the decisions in the Estate of Pickett, in the Estate
of Moore and in the Estate of Boland, already cited.
A Widow Who Remarries thereby loses her right to have a home-
Btead carved out of the property of her deceased husband, as well as
her right to any further allowance: Estate of Still, 117 Cal. 509, 49
Pac. 463; Estate of Boland, 43 Cal. 640. If a wife whose husband
has been absent and not known to be living for more than five years,
and whom she believes to be dead, contracts a second marriage, it,
until annulled, is valid and prevents her from having a homestead set
aside to her out of the estate of the first husband after his decease,
although, upon hearing that he was not dead, she ceased cohabiting
with her second husband: Estate of Harrington, 140 Cal. 244, 98
Am. St. Eep. 51, 73 Pac. 1000, 74 Pac. 136.
In the Matter of the Estate op ANNIE COLLINS, De-
ceased.
[No. 2,341 ; decided April, 1909.]
A Homestead Selected by the Husband in his lifetime from the
community estate vests absolutely in his surviving wife, under the
provisions of section 1474 of the Code of Civil Procedure.
Homestead — Continuance on Death of Husband. — The homestead as
selected by the husband continued so long as it remained a home-
stead. It ceased to exist upon the death of the widow, leaving no
issue and became subject to her testamentary disposition, and she
having died intestate, passed to her heirs, under the laws of suc-
cession.
Homestead — Who are Heirs of Survivor. — The homestead, upon vest-
ing in the survivor, becomes her separate estate, subject to the home-
stead protections, and she having died intestate, the homestead ceased
and the title to the property passed to her heirs under the provision
of subdivision 3 of section 1386 of the Civil Code, and not under the
292 Coffey's Probate Decisions, Vol. 5.
provisions of subdivision 8 of said section of the Civil Code as it
was in existence at the time of the death of the survivor.
Eugene D. Sullivan, for the heirs of decedent.
John Cotter Quinlan, for the heirs of predeceased spouse
of decedent.
Edward J. Lynch, for the public administrator.
Judge Coffey rendered no written opinion in this case, but
the syllabi, approved by him, state the points adjudicated.
Estate of EUGENE ZEILE, Deceased.
[No. 5,125 (N. S.); decided February 1, 1910.]
Olographic Will — Attesting Witnesses. — A will properly executed in
olographic form is 'entitled to probate as such, although it is wit-
nessed and although the testator believed attestation necessary and
intended the execution to be in the attested form.
Will. — The Term "Subscribing Witness" as used in Civil Code
1282, is synonymous with "attesting witness,'"' as used in Civil Code,
1276, and has no reference to olographic wills.
Olographic Wills were First Permitted in California by the Civil
Code of 1872, the provisions being adopted from the civil law.
Olographic Will — Legatee as Witness. — A gift to a legatee by an
olographic will is not invalidated by his signing the instrument as
a witness. Section 1282 of the Civil Code has no application to
olographic wills.
Nathan M. Moran, for assignee of a legatee whose name
was subscribed as a witness to an olographic will.
COFFEY, J. A will properly executed in 1 be olographic
Conn is entitled to probate as such, even though witnessed,
ami even though the testator believed the attestation essen-
tial and intended the execution to be in the attested form:
ate of Fay, 1 Cof. Pro. Dec. 428, and note; Estate of
Soher, 78 Cal. 477, 21 Pac. 8- Estate of Dama, ante, p. 21.
Estate op Zeile. 293
The will of Eugene Zeile was not attested in due form of
law and was admitted to probate solely as an olographic will:
(See Certificate of Proof of Will; Order Admitting Will to
Probate. )
The record in this proceeding therefore shows that there
were no subscribing witnesses to this will in the sense in which
that term is used in Civil Code, 1282.
The term "subscribing witness," as used in Civil Code,
1282, is synonymous with "attesting witness," as used in
Civil Code, 1276, and has no reference whatever to olographic
wills.
The words "subscribing witness," used exclusively in Civil
Code, 1282, suggest that the legislature intends a broader
operation to be given that section in contradistinction to the
terms "attest" and "attesting witness" employed through-
out Civil Code, 1276.
A glance at the history of the legislation, however, shows
the opposite to be true :
Civil Code, 1282, is a verbatim re-enactment of section 5 of
"An act concerning wills," passed April 10, 1850: Stats. 1850,
page 177; Code Commissioner's note to Civ. Code, 1282; Ham-
mond & Burch's Annotated Code of 1872.
The term "subscribing witness" has reference to section 3
of the same act, which is as follows:
"§ 3. No will, except such nuncupative wills as are men-
tioned in this act shall be valid, unless it be in writing and
signed by the testator or by some person in his presence, and
by his express direction, and attested by two or more com-
petent witnesses subscribing their names to the will, in the
presence of the testator."
It is here to be noted that our statutes at that date made no
provision for olographic wills.
Olographic wills were first permitted in California by the
Civil Code of 1872, the provisions being adopted from the
civil law, as shown by the code commissioner's note to Civil
Code, 1277.
"1277. An olographic will is one that is entirely written,
dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of this
state, and need not be witnessed. (NOTE — Code Civil, p.
294 Coffey's Probate Decisions, Vol. 5.
970 ; 5 Toullion, N. 357 ; 1 Stu. Low., c. 327 ; 2 Bouvier Inst.,
N. 2139; La. Civ. Code, art. 1581. The tendency of the
courts to recognize the desires of decedents, however inform-
ally expressed, as shown in note to sec. 1317, post, is one
reason for the adoption of this section; and while it obviates
many difficulties and annoyances, may not, and, indeed, it is
confidently claimed in those countries where olographic wills
are recognized, does not give rise to as many attempts at
fraudulent will making and disposition of property as where
it does not exist; simply because the testator's intentions are
unknown.) "
In framing their provision for the attestation of wills, the
code commissioners adopted with slight changes the more de-
tailed provisions of David Dudley Field's Proposed Civil
Code of New York, in which the term "attesting" is in each
instance applied to the witnesses, in place of the less technical
term "subscribing" used in section 3 of the act of 1850
quoted above: Proposed Civil Code of N. Y. (18G5), sec. 550.
The Field Code made no provision for olographic wills.
Civil Code, 1282, having therefore been preserved intact
from a statute enacted over thirty years before olographic
wills were recognized, it is plain that there was no intention*
on the part of the legislature ex industria to make that sec-
tion applicable to a superfluous witness to an olographic will.
On the contrary, the intention of the framers of the Civil
Code was "to recognize the desires of decedents, however in-
formally expressed."
The history of the disability of a witness to a will to take as
a Legatee or devisee thereunder, as having its basis in the
common-law rule excluding an interested witness from testify-
ing, leading to the result of invalidating many wills until
lovrishition in England and in this country altered the situa-
tion by invalidating the gift and thus restoring the com-
pel. ■m-y of the witness — is a familiar one, fully treated in the
standard text-books, and need not be further noted here.
The next step in legislation and decision was to remove the
witness* disability to receive the gift provided ihr will could
/.. proved by other cortt/»l<>it evidence: Caw v. Robertson, 5
N. V. 125; Cornwel] v. Woolley, 1 Abb. Ct. of A pp. Dee. 441,
13 Bow. Pr. 475, 47 Barb. 327; Matter of Owen, 48 App.
Estate op Zeile. 295
Div. 507, 62 N. Y. Supp. 919; 26 Misc. Rep. 179, 56 N. Y.
Supp. 853.
From the brief history of legislation in California noted
above, it is evident that the intention of our lawmakers was
to accomplish the result reached in New York and nothing
more.
Testation in the present case was complete when the instru-
ment had been entirely written, dated and signed by the hand
of the testator himself. Nothing subsequently done by the
legatee would add anything to its provisions or validity. It
is no less reasonable to contend that an act of his could in-
validate a gift to him any more than that he could invalidate
the testator's whole will.
A minute search among the authorities fails to bring to
light any exact precedent which would control the present
case. This is undoubtedly due to the fact that olographic
wills have been permitted in comparatively few jurisdictions.
An exactly parallel case is, however, to be found among the
decisions on nuncupative wills.
The analogy is so strong in every particular that a portion
of the decision (Smith v. Crotty, 112 Ga. 905, 38 S. E. 110)
may be quoted with advantage: "This case, as here presented,
turns upon the question whether or not a legacy given by a
nuncupative will is void when the legatee is one of the essen-
tial witnesses by whose oaths the making of such will must
be proved in conformity to the requirements of section 3349
of the Civil Code. "Where a nuncupative will embraces nothing
except a bequest of the testator's entire estate to a single
person, it would of course result that, if the legacy be void,
the will itself should be regarded as a nullity, and therefore
not entitled to probate. The determination of the question
stated depends upon whether or not section 3275 of the Civil
Code applies to nuncupative wills. That section embraces the
following provision: 'If a subscribing witness is also a legatee
or a devisee under the will, the witness is competent, but the
legacy or devise is void.' If the language just quoted is
applicable to a nuncupative will, a legacy or devise in such a
will is void if the testimony of the legatee or devisee is in-
dispensably necessary to proving the making of the will; and,
as above indicated, if the will contains nothing but a declara-
296 Coffey's Probate Decisions, Vol. 5.
tion that such person shall be the sole beneficiary thereof, it
cannot be admitted to probate. On the other hand, if the
section just mentioned has reference exclusively to written
■wills, it will follow, as we shall presently undertake to show,
that a nuncupative will may be good even though a legatee
thereunder is an essential witness to prove the making thereof ;
and also that he cannot be deprived of his legacy. After care-
ful consideration we have reached the conclusion that this
section applies to written wills onry. The use of the words
'subscribing witness' strongly indicates that this is so. What
is a 'subscribing witness'? Clearly, one who writes his name
under an attesting clause: Black's Law Dictionary, 1131;
2 Bouvier's Dictionary, 1059 ; 2 Abbott's Law Dictionary, 512;
2 Rapalje and Lawrence's Law Dictionary, 1230, and Law
Dictionary, 985": Smith v. Crotty, 112 Ga. 905, 38 S. E. 110.
Incompetency of a witness by reason of interest save in
respect of attested wills has been expressly abolished in Cali-
fornia: Code Civ. Proc. 1879.
If, therefore, the legacy to the witness Fargue is to be
invalidated in the present case, it will be solely on the author-
ity of Civil Code, 1282. This section, as we have seen from
the history of its enactment, has no possible application to
olographic wills. The reasoning of the supreme court of
Georgia in the case last cited based on construction of terms
alone leads most forcibly to the same conclusion.
Distribution decreed to assignee.
Olographic Wills are discussed in the note to Estate of Fay, 1
Cof. Pro. Dec. 432.
Attestation and Witnessing of Wills are discussed in the note to
Estate of Fleishman, 1 Cof. Pro. Dec. 24.
Estate of Le Clerc. 297
Estate of JEAN CLAUDE LE CLERC, Deceased.
[No. 961; decided February 5, 1887.]
Claim Against Estate — Presentation and Adjudication. — After
presentation and allowance by the administratrix, and approval by
the judge, a claim in this case was, upon order to show cause,
ordered paid. The administratrix contested this order upon the
ground that since the allowance of the claim judgment had been
recovered against her by a third person for part of the claim. The
claim not having been paid, a second application for an order for its
payment was made. The administratrix contested this application
and alleged that since the first order she had paid the judgment
before mentioned, and she sought to set up this payment as a counter-
claim. It was held that the former order covered the subject matter
of the claim, was a full and final determination thereof, and a bar
to the application to allow the setoff.
Dunne & Morbio, for Le Maitre-
Edward C. Harrison, for the administratrix.
STATEMENT OF CLAIMS AGAINST ESTATES OF DECEDENTS.
Form and Requisites of Statement.
General Requisites of Statement. — The law does not prescribe any
special form in which claims against the estate of a decedent must
be stated. A statement is sufficient, without any particular for-
mality, which will distinguish the claim from other similar claims,
and inform the executor or administrator and the probate judge of
the nature and the amount of the claim so as to enable them to act
and pass advisedly upon it. The facts on which the claim is founded
may be stated in general terms; and while they should be stated
clearly, distinctly and concisely, they need not be recited with the
precision and particularity of a complaint: McGrath v. Carroll, 110
Cal. 79, 42 Pac. 466; Pollitz v. Wickersham, 150 Cal. 238, 88 Pac.
911; Appeal of Mead, 46 Conn. 417; Henderson v. Ilsley, 19 Miss.
(11 Smedes & M.) 9, 49 Am. Dec. 41; Lenk Wine Co. v. Caspari, 11
Mo. App. 382; Walker v. Gay's Estate, 73 Mo. App. 89; Douglass
v. Folsom, 21 Nev. 441, 33 Pac. 660; Kirman v. Powning, 25 Nev.
378, 60 Pac. 834, 61 Pac. 1090; Little v. Little, 36 N. H. 224; Gol-
tra v. Penland, 42 Or. 18, 69 Pac. 925; Trigg v. Moore, 10 Tex. 197.
Other cases supporting these rules are Halfman's Exr. v. Ellison,
51 Ala. 543; Appeal of Merwin, 72 Conn. 167, 43 Atl. 1055; Hannum
v. Curtis, 13 Ind. 206; Noble v. McGinnis, 55 Ind. 528; Stapp v.
Messeke, 94 Ind. 423; Culver v. Yundt, 112 Ind. 401, 14 N. E. 91;
Thomas V. Merry, 113 Ind. 83, 15 N. E. 241; Worley v. Hineman
298 Coffey's Probate Decisions, Vol. 5.
(Ind. App.), 29 N. E. 570; Pickrell v. Hiatt, 81 Iowa, 537, 46 N. W.
1062; Hayner v. Trot, 46 Kan. 70, 26 Pac. 415; Schlee v. Darrow's
Estate, 65 Mich. 362, 32 N. W. 717; Coots v. Morgan's Admr., 24
Mo. 522; State v. Seehorn, 139 Mo. 582, 39 S. W. 809; In re Weeks,
23 App. Div. 151, 48 N. Y. Supp. 908; Hansell v. Gregg, 7 Tex. 223.
Nevertheless, the law requires that claims be stated and described
with such fullness and certainty as to apprise the personal repre-
sentative of the decedent and the probate court of the facts involved,
to the end that they may properly discharge their trust and de-
fend the estate against unjust demands: Floyd v. Clayton, 67 Ala.
; McGrath v. Carroll, 110 Cal. 79, 42 Pac. 466; Carter v. Pierce,
114 111. App. 589; Dorsey v. Burns, 5 Mo. 334; Corson v. Waller,
104 Mo. App. 621, 78 S. W. 656. It is said that the statement
should so describe the claim that it may be distinguished from all
similar claims: Bibb v. Mitchell, 58 Ala. 657. In Connecticut there
is a rule requiring, in case of appeal from the proceedings of com-
missioners on estates in passing upon claims, "a statement of the
amount and nature of the claim, and of the facts on which it is
based," to be filed. Under this rule it has been held that a simple
statement of a claim as an indebtedness, "To cash, $1,700," is in
proper form: Appeal of Corr, 62 Conn. 403, 26 Atl. 478.
The rule prevailing in Indiana is, that the statute does not re-
quire a regular complaint constructed according to the ordinary rules
of pleading, but merely a succinct statement sufficient to advise the
executor or administrator of the nature of the claim and the amount
anded, and sufficient also to bar another action on the same
demand: Crabb v. Atwood, 10 Ind. 322; Thompson v. Eistine, 13
Ind. 459; Post v. Pedrick, 52 Ind. 490. The creditor is required to
file only a succinct and definite statement of his claim, embracing
therein those facts essential to make a prima facie showing of a
subsisting indebtedness against the estate. But such a showing, at
least, he must make. He must set forth such facts as are essential
to constitute a prima facie claim, such as prima facie show the es-
tate lawfully indebted to him: Huston v. First Nat. Bank, 85 Ind.
21; Moore v. Stephens, 97 Ind. 271; Walker v. Heller, 104 Ind. 327,
3 X. E. 114; Culver v. Yundt, 112 Ind. 401, 14 N. E. 91; Thomas v.
Merry, 113 Ind. 83, 15 N. E. 244; Lockwood v. Bobbins, 125 Ind.
25 N. E. 455; Stanley's Estate v. Pence, 160 Ind. 636. 66 N. E.
51, 67 X. E. 441; Taggart v. Tevanuy, 1 ind. App. 339, 27 N. E. 511;
■ per v. Griffin, 13 I ml. App. 212, 40 N. E. 710.
[ndefii and uncertainty in the statement of a claim may
be aided by the accompanying affidavit: Stewart v. Small, II 1ml.
App. 100, 38 X. i;. 326; Hyatt v. Bonham, 19 Ind. App. 256, ID X. E.
361.
Necessity of Following Rules of Pleading. — The law does not
contemplate thai fin- technical rules of pleading shall be observed
in Btatin^' claims against estates of decedents. No formal complaint
Estate of Le Clerc. 299
or pleadings are necessary. It is enough that the requirements
stated in preceding paragraphs are observed: Flinn v. Shackleford,
42 Ala. 202; Floyd v. Clayton, 67 Ala. 265; Stewart v. Cantrall, 6
Blackf. 74; Hannum v. Curtis, 13 Ind. 206; Ginn v. Collins, 43 Ind.
271; Wright v. Jordan, 71 Ind. 1; Davis v. Huston, 84 Ind. 272;
Hileman v. Hileman, 85 Ind. 1; Davis v. Watts, 90 Ind. 372; Stapp
v. Messeke, 94 Ind. 423; Windell v. Hudson, 102 Ind. 521, 2 N. E.
303; Strieker v. Barnes, 122 Ind. 348, 23 N. E. 263; Wolfe v. Wilsey,
2 Ind. App. 549, 28 N. E. 1004; Brown v. Sullivan, 3 Ind. App. 211, 29
N. E. 453; Sheeks v. Eillion, 3 Ind. App. 262, 29 N. E. 786; Doan
v. Dow,. 8 Ind. App. 324, 35 N. E. 709; Parrett v. Palmer, 8 Ind.
App. 356, 52 Am. St. Eep. 479, 35 N. E. 713; Cooper v. Griffin, 13
Ind. App. 212, 40 N. E. 710; Gibbs v. Ely, 13 Ind. App. 130, 41 N.
E. 351; Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85; Woods
v. Matlock, 19 Ind. App. 364, 48 N. E. 384; Hyatt v. Bonham, 19 Ind.
App. 256, 49 N. E. 361; Walker v. Gay's Estate, 73 Mo. App. 89;
Monumental Bronze Co. v. Doty, 99 Mo. App. 195, 73 S. W. 234, 78
S. W. 850; Fitzgerald's Estate v. Union Sav. Bank, 65 Neb. 97, 90
N. W. 994. It has been said that statements of claims in probate
courts are on a footing with complaints in causes originating before
justices of the peace: Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E.
511; Knight v. Knight, 6 Ind. App. 268, 33 K E. 456.
A claimant need not aver in what capacity, whether as a corpora-
tion, a partnership, or person, it acts in presenting the claim, as is
required by statute of Iowa in ordinary actions, at least not unless
objection is made by motion: University of Chicago v. Emmert, 108
Iowa, 500, 79 N. W. 285.
Necessity of Writing. — Administration statutes contemplate that
claims against the estate of a decedent shall be presented in writing,
and have a tangible form and substance which will enable the execu-
tor or administrator to act intelligently upon them. A mere verbal
statement of a claim does not satisfy the requirements of the law:
Millett v. Millett, 72 Me. 117; Williams v. Gerber, 75 Mo. App. 18;
King v. Todd, 27 Abb. (N. C.) 149, 15 N. Y. Supp. 156; In re Mor-
ton's Estate, 7 Misc. Eep. 343, 28 N. Y. Supp. 82. Although the stat-
utes may not positively demand that claims shall be put in writing,
nevertheless there obviously is no other proper manner for placing
them before the personal representative of the decedent and the pro-
bate judge: Pike v. Thorp, 44 Conn. 450.
Itemising Accounts. — It is said that an executor may allow a claim
against the estate which he is satisfied is just if found to be correct,
although it is not made out in an itemized form: Lancaster v. Gould,
46 Ind. 397; Kinnan v. Wight, 39 N. J. Eq. 501. And an account
stated may be presented without specifying the items: Estate of
Swain, 67 Cal. 637, 8 Pac. 497. Yet it has been affirmed that a claim
based upon an account should give the items in detail, and not simply
a statement of the balance: Eoethlisberger v. Caspari, 12 Mo. App.
300 Coffey's Probate Decisions, Vol. 5.
514; and that in case of an open account, the items composing it,
■with the respective dates and amounts, should be stated: McHugh v.
Dowd's Estate, 86 Mich. 412, 49 N. W. 216. A statement in a plain
and formal manner of the items of an account, duly verified, is suffi-
cient: Dodds v. Dodds, 57 Incl. 293; Ramsey v. Fouts, 67 Ind. 78. A
demand consisting of several items must be presented in its entirety
for allowance, and not piece-meal: Pfeiffer v. Suss, 73 Mo. 245. But
if one item is well stated, the complaint is not demurrable because
of the insufficiency of other items of the claim: Sheeks v. Fillion, 3
Ind. App. 262, 29 N. E. 786.
Stating Claims for Services. — A statement for work and labor
which sets forth that the services were rendered, by whom and for
whom rendered, the nature, extent and value of the services, together
with an affidavit that the amount stated is justly due and owing is
sufficient: Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. 511; Wood
v. Land, 35 Mo. App. 381. A claim presented for services rendered,
stating the number of days' service in each month, the total for each
year, and the grand total for all, with the wages per day, stating the
full amount, and then crediting the amounts received on account dur-
ing each year, leaving a certain balance, is sufficient: Ducan v.
Thomas, 81 Cal. 56, 22 Pac. 297. A claim showing to whom it is pay-
able, and that it is for board, washing, fuel and attention during cer-
tain years at a specified amount per month for a specific number of
months, is sufficiently definite: Borum v. Bell, 132 Ala. 85, 31 South.
454. To the same effect, see Stewart v. Small, 11 Ind. App. 100, 38
N. E. 826. A statement in a claim for "services in the care and
aiding and supporting" the decedent's sister and minor children, is
sufficiently broad to embrace a contribution of money: Grimm v. Tay-
lor's Estate, 96 Mich. 5, 55 N. W. 447. If the claim is for services
rendered to the decedent under an agreement for payment when she
sold certain land which has not been sold, the claim is not defective
because it does not describe the land: Thompson v. Orena, 134 Cal.
26, 66 Pac. 24. Presenting a claim "for services rendered the de-
cedent at her request" is not a presentation of a claim for services
rendered in consideration of the promise of the deceased to make a
will in the claimant's favor: Etchas v. Orena, 127 Cal. 588, 60 Pac. 45.
A claim for services rendered by a married woman while living
with her husband is community property, and should be presented in
his name. But where such a claim, verified by the wife, is presented
in her name by the husband, and is rejected, and an action is subse-
quently brought thereon by them, a judgment in their favor will not
be reversed on account of the informality in the manner of the pres-
entation: Smith v. Furnish, 70 Cal. 424, 12 Pac. 392; approved in
Bixta v. E< iter, 14 S. D. 346, 85 N. W. 598.
A elaim for medical services need not allege that the physician who
rendi red them vraa licensed as required by law: Cooper v. Griffin, 13
I. i.l. App. 212, 40 N. E. 710.
Estate of Le Clerc. 301
Waiver of Insufficiency of Statement. — Where no objection is made
by the executor or administrator against the sufficiency of the form
in which a claim is stated he may be deemed to have waived the in-
sufficiency. If he relies on defects in form in refusing to allow a
claim, he should make known his objection seasonably: Brown v.
Forst, 95 Ind. 248; "Waltemar v. Schnick's Estate, 102 Mo. App. 133,
76 S. W. 1053; Eoss v. Knox, 71 N. H. 249, 51 Atl. 910; Merino v.
Munoz. 99 App. Div. 201, 90 N. Y. Supp. 9S5; Aiken v. Coolidge, 12
Or. 244, 6 Pac. 712. As to the waiver of the absence or insufficiency
of the verification of a claim, see post, p. 306. To quote from Britain
v. Fender, 116 Mo. App. 93, 92 S. W. 179: "The demand must be in
writing and must state the amount and nature of the claim with a
copy of the instrument of writing or account, upon which the claim
is founded. These requisites are all jurisdictional, and, if the claim-
ant fails to perform any of them, neither the probate court in the
first instance, nor the successive courts to which an appeal may be
prosecuted, obtains jurisdiction over the cause. But, to confer juris-
diction, no more is required of the claimant than the identification
of his claim, in the exhibition thereof, to the extent that the ad-
ministrator may be apprised of its amount and origin and thus be
enabled to investigate it intelligently, and that a recovery upon it
may operate as a bar to any other action based upon the same cause.
With these purposes accomplished, the court acquires jurisdiction over
the demand, and notwithstanding it may be meager, and to some
extent indefinite, in statement, if the administrator is satisfied to go
to trial upon the merits without first moving to have it made more
definite and certain, he waives all such defects, and will not be heard
to object to them, especially after verdict."
Matters Necessary to Set Forth.
Justness of Claim. — The statutes generally provide that a claim
which is due when presented to the executor or administrator must
be supported by an affidavit of the claimant or some one on his be-
half that the amount is justly due, that no payments have been made
thereon which are not credited, and that there are no offsets to the
same: Cal. Civ. Code, sec. 1494; Ariz. Eev. Stats., sec. 1743; Idaho
Eev. Stats., sec. 5464; Mont. Code Civ. Proc, sec. 2604; Okl. Eev.
Stats., sec. 1620; Wyo. Eev. Stats., sec. 4750. Without an affidavit
of the justness of the claim it is not properly authenticated nor duly
presented: Green v. Brooks, 25 Ark. 318; Strickland v. Sandmeyer,
21 Tex. Civ. App. 351, 52 S. W. 87; Thurber v. Miller, 14 S. D. 352,
85 N. W. 600. In Kentucky the claim must also be verified by an-
other person than the claimant, who must state in his affidavit that
he believes the claim to be just and correct and give the reasons for
his belief: Dewhurst v. Shepherd's Exr., 102 Ky. 239, 43 S. W. 253.
An affidavit to a claim which is actually owing, but not then pay
able, is not false in stating that the claim is "due," since the word is
302 Coffey's Probate Decisions, Vol. 5.
here used in its primary sense of "owing": Crocker-Woolworth Nat.
Bank v. Carle, 133 Cal. 409, 65 Pac. 951.
Credits, Payments, Offsets, Security and Usury. — Administration stat-
utes usually provide that a claim presented to an executor or admin-
istrator, must be supported by affidavit that no payments have been
made thereon which are not credited and that there are no offsets
to the same: See statutes cited in preceding paragraph; McWhorter
v. Donald, 39 Miss. 779, 80 Am. Dec. 97. This statutory requirement
must be at least substantially complied with in order to entitle the
claim to allowance: Perkins v. Onyett, 86 Cal 348, 24 Pac. 1024;
Cecil v. Rose, 17 Md. 92; "Walters v. Prestidge, 30 Tex. 65; but a
substantial compliance with the statute is enough: State v. Collins,
16 Ark. 32; Griffith v. Lewin, 129 Cal. 596, 62 Pac. 172; Merchants'
Bank v. Ward's Admr., 45 Mo. 310; Gaston v. McKnight, 43 Tex.
619. The rule, as expressed in some jurisdictions, is that the affidavit
must show what amounts, if any, have been paid, and any debts due
from the claimant to the estate: Brown v. Brown, 45 S. C. 408, 23
S. E. 137. A verification stating that the sum is justly due, that no
payments have been made thereon which are not credited, and that
there are no offsets except some small items the exact amount of
which is not known to the affiant, but which she is willing to have
credited upon the same, is sufficient, since the exception is as definite
as the claimant can truthfully make it: Guerin v. Joyce, 133 Cal. 405,
65 Pac. 972. An affidavit presenting a note with credits indorsed
thereon is not defective in not stating the amount claimed to be due:
Waltemar v. Schniek's Estate, 192 Mo. App. 133, 76 S. W. 1053.
An affidavit to a claim presented by an administratrix is insuffi-
cient if it does not state that no payments have been made: In re
Clapsaddle's Estate, 4 Misc. Rep. 355, 24 N. Y. Supp. 313.
A claimant is not required to specify in his affidavit an independent
demand due from him to the estate which the administrator may or
may not plead as a counterclaim at his option: Osborne v. Parker,
66 App. Div. 277, 72 N. Y. Supp. 894. And the Missouri statute re-
quiring a claimant to make affidavit that all just credits and offsets
have been allowed does not apply in case the claim is made as a
counterclaim by the creditor in an action in another court than the
probate tribunal to establish a claim against him in favor of the es-
tate: Stiles v. Smith, 55 Mo. 363.
The statutory provision that the credits to which the estate is en-
'I shall be set forth in the claim is complied with where tin
credit is not itemized but is stated in gross: Miller v. Eldridge, 126
End. 461, 27 X. E. 132. But in Delaware, under the rule that the
claim in u - 1 • all credits within the plaintiff's knowledge, it has
been held not sufficient to make a general reference to the defend-
ant's honks for credits: Lolley v. Ncedham's Ezra., 1 llarr. 86.
The statu lis require that the affidavit shall state that
there is no setoff or at: Worthley'i Admrs. v. Hammond, 76
Estate of Le Clerc. 303
Ky. (13 Bush) 510; Ex parte Hanks, Dud. Eq. 231; or any usury
therein: Leach v. Kendall's Admr., 76 Ky. (13 Bush) 42-1; Cheairs'
Exrs. v. Cheairs' Admrs., 81 Miss. 622, 33 South. 414. A "setoff" is
not a "discount" within this rule, and hence the claimant must swear
both that there is no setoff and no discount, otherwise his claim is not
well presented: Trabue's Exr. v. Harris, 58 Ky. (1 Met.) 597.
In some of the states the affidavit should state, if such is the case,
that no security has been received for the payment of the debt:
Smoot's Admr. v. Bunbury's Exr., 1 Har. & J. 136; MeWhorter v.
Donald, 39 Miss. 779, 80 Am. Dec. 97.
Particulars of Unmatured or Contingent Claims. — Some states have
a statutory provision that if the claim is not due when presented,
or is contingent, the particulars of the claim must be stated, but no
affidavit is necessary: Verdier v. Eoach, 96 Cal. 467, 31 Pac. 554.
Where a decedent had contracted to take certain shares of stock at
a certain time, the presentation to his administrator of a verified
elaim for the price agreed, including a copy of the contract, and an
offer to surrender the certificate, is a sufficient statement of the "par-
ticulars of the claim": Maurer v. King, 127 Cal. 114, 59 Pac. 290.
And where a claim is for services rendered to the decedent under
an agreement that they should be paid when she sold certain land,
which she did not sell, the claim is not defective because it fails to
describe the land: Thompson v. Orena, 134 Cal. 26, 66 Pac. 24. A
promissory note, whether matured or not, requires no statement of
particulars other than that found upon its face. Hence a claim
based thereon is sufficient if it contains a copy of the note followed
by the statutory affidavit: Landis v. "Woodman, 126 Cal. 454, 58 Pac.
857; Crocker-Woolworth Nat. Bank v. Carle, 133 Cal. 409, 65 Pac.
951. An affidavit to a claim, actually owing but not then payable, is
not false in stating that the claim is "due," for the word is here used
in its primary sense of "owing": Crocker-Woolworth Nat. Bank v.
Carle, 133 Cal. 409, 65 Pac. 951.
Production of Instrument or Copy Thereof. — If a claim against the
estate of a decedent is founded upon a written instrument, a copy
thereof must accompany the claim. The original instrument, how-
ever, need not be exhibited, unless demanded; the copy is sufficient.
In case the original is demanded, it must be exhibited unless lost or
destroyed: Posey v. Decatur Bank, 12 Ala. 802; Estate of McDougald,
146 Cal. 191, 79 Pac. 878; Pulley v. Perfect, 30 Ind. 379; Bryson v.
Kelley, 53 Ind. 4S6; Baker v. Chittuck, 4 G. Greene, 480; Kentucky
Title Co. v. English, 20 Ky. Law Eep. 2024, 50 S. W. 968; McKinney
v. Hamilton's Estate, 53 Mich. 497, 19 N. W. 263; Waltemar v
Schnick's Estate, 102 Mo. App. 133, 76 S. W. 1053; Britain v. Fender
116 Mo. App. 93, 92 S. W. 179; Dorias v. Doll, 33 Mont. 314, 83 Pac
884; McFarland v. Fairlamb, 18 Wash. 601, 52 Pac. 239; First Nat
Bank v. Eoot, 19 Wash. Ill, 52 Pac. 521. In Indiana, it is suffi
cient to file a note against the estate without accompanying it with
Coffey's Probate Decisions, Vol. 5.
a formal complaint: Garrigus v. Home Frontier etc. Soc, 3 Ind. App.
91, 50 Am. St. Eep. 262, 28 N. E. 1009. See, too, Price v. Jones, 105
Ind. 543, 55 Am. Eep. 230, 5 N. E. 683. In a statement based upon
a note so torn and mutilated that the signature of the maker does
not fully appear thereon, and alleging that the torn portion is lost,
it must also be alleged that the mutilation was done innocently and
was the result of accident or mistake: McCullough v. Smith, 24 Ind.
App. 536, 79 Am. St. Eep. 281, 57 N. E. 143.
"Where a note secured by mortgage given by the decedent has been
assigned to the administratrix, the filing of a copy of the note with
the claim is sufficient without a copy of the assignment: Estate of
McDougald, 146 Cal. 191, 79 Pac. 878.
Reference to Lien or Security. — If the claim is secured by a mort-
gage or recorded lien it is sufficient, according to the statutes of some
states, to describe the lien or mortgage, and refer to the date, volume
and page of its record: Consolidated Nat. Bank v. Hayes, 112 Cal.
75, 44 Pac. 469; Moore v. Russell, 133 Cal. 297, 85 Am. St. Eep. 166,
65 Pac. 624; Estate of McDougald, 146 Cal. 191, 79 Pac. 878. But
either this must be done, or the claim be accompanied by a copy of
the mortgage; it is not enough to present the note, which recites that
it is secured by mortgage: Bank of Sonoma County v. Charles, 86 Cal.
326, '24 Pac. 1019; Evans v. Johnston, 115 Cal. 180, 46 Pac. 906; Es-
tate of Turner, 128 Cal. 388, 60 Pac. 967. In case the mortgage is
ineffectual because the decedent had no interest in the encumbered
property, the note is properly presented without making any refer-
ence to the mortgage: Otto v. Long, 127 Cal. 471, 59 Pac. 895.
According to some authorities, the affidavit should state, if such is
the case, that no security for the debt has been received: Smoot's
Admr. v. Bunbury's Exr., 1 Har. & J. 136; McWhorter v. Donald, 39
Miss. 779, 80 Am. Dec. 97.
Verification of Claim.
Necessity of Verification. — The statutes usually require that claims
inted to an executor or administrator for allowance must be sup-
ported by affidavit that the amount is justly due, that no payments
have been made thereon which are not credited, and that there are
no offsets to the same: Perkins v. Onyett, 86 Cal. 348, 24 Pac. 1024.
Other decisions on this question arc: Winningham v. Holloway, 51
Ark. 385, 11 S. W. 579; Smith v. Donman, 48 Ind. 65; Clawson v.
McCune, 20 Kan. 337; Leach v. Kendall's Admr., 70 Ky. (13 Bush)
424; Ho,,, | v. Maxwell, T.i Ky. Law Rep. 1791, 66 S. W. 276; Swift
[ron & Steel Works v. Selmlte, 8 Ky. Law Eep. 7S7; Watson v. \
Rid. II'J; Walker v. Nelson, 87 Miss. 268, 39 South. 809; In
re I; 7 Bep. 12(1, 57 N. Y. Supp. :'.!'S; Terry v. Dayton,
'.', I Barb. S19. It is sometime said thai the statutory requirement
thai iim be verified is imperative: Worley v. Bineman (Ind.
App.;, 29 N. E, 570; or I it the verification is a step preliminary
Estate of Le Clerc. 305
to the conferring of jurisdiction on the court, and a condition pre-
cedent to the authority of the court to allow the claim: McWhorter
v. Donald, 39 Miss. 779, 80 Am. Dec. 97; Cheairs' Exrs. v. Cheairs'
Admrs., 81 Miss. 662, 33 South. 414; Fitzpatrick v. Stevens, 114 Mo.
App. 497, 89 S. W. 897; Clancey v. Clancey, 7 N. M. 405, 37 Pac.
1105, 38 Pac. 16S; modified, if not overruled, in Gutierrez v. Scholle,
12 N". M. 32S, 78 Pac. 50. Some courts, however, regard the statute
prescribing verification as merely directory: Wile v. Wright, 32 Iowa,
451; Wise v. Outtrim, 139 Iowa, 192, 130 Am. St. Rep. 301, 117 N.
W. 264; and we shall presently see that other courts hold that the
affidavit may be waived, and that an. insufficient verification does not
necessarily vitiate the allowance of the claim.
In Arkansas a plaintiff who sues an executor without first making
the affidavit authenticating his claim prescribed by statute will be
nonsuited: Eoss v. Hine, 48 Ark. 304, 3 S. W. 190. But in Kentucky
where there is a failure to make affidavit of the justness of the claim
as required by statute, before suing an heir thereon, the petition
should not be dismissed absolutely, but simply without prejudice:
Teeter v. Anderson, 8 Ky. Law Eep. 108.
Under the Alabama statute claims presented directly to the ex-
ecutor or administrator need not be verified, but only those filed with
the judge of probate. A valid presentation of a claim, therefore,
may be made to the executor or administrator directly without veri-
fication: Peevey v. Farmers' & Merchants' Nat. Bank, 132 Ala. 82, 31
South. 466; Nicholas v. Sands, 136 Ala. 267, 33 South. 815. This rule
appears to be recognized also in Eayburn v. Eayburn, 130 Ala. 217,
30 South. 365.
Only those demands created by the decedent, not those created by
his administrator, need be verified by the claimant: Polly's Exr. v.
City of Covington, 10 Ky. Law Eep. 361; Berry v. Graddy, 58 Ky.
(1 Met.) 553. And no verification seems to be required in Arkansas
of a claim on which action was pending at the time of the death of
the decedent: State Bank v. Tucker, 15 Ark. 39; but in other states
such claims must be authenticated as required in other cases: Faulk-
ner v. Hendy, 123 Cal. 467, 56 Pac. 99; Anderson v. Schloesser, 153
Cal. 219, 94 Pac. 885.
An affidavit seems unnecessary to support a judgment claim: Good-
rich v. Fritz, 9 Ark. 440; Cullerton v. Mead, 22 Cal. 95; Crane v.
Moses, 13 S. C. 561. But in Kentucky, before a judgment can be ad-
mitted as a claim against a decedent's estate, it must be verified:
Curry's Admr. v. Bryant's Admr., 70 Ky. (7 Bush) 301.
Under the Texas statute specifying the manner in which "claims
for money," etc., shall be verified before presentation to the execu-
tor or administrator, it has been decided that a mortgage is not a
"claim for money": Simpson v. Eeily, 31 Tex. 298. But in Kentucky
a judgment for the enforcement of a mortgage lien on the land of
a decedent should not be rendered without a verification of the claim
Prob. Dec, Vol. V — 20
306 Coffey's Probate Decisions, Vol. 5.
as prescribed by statute: Tatum v. Gibbs, 19 Ky. Law Eep. 695, 41
S. W. 565.
The Arkansas statute requiring that claims shall be authenticated
by affidavit has been held to have no application where a bank seeks
to enforce a lien conferred by the statutes of that state on a de-
ceased debtor's stock: Mcllroy Banking Co. v. Dickson, 66 Ark. 327,
50 S. W. 868.
A judgment cannot be rendered on a claim against the estate of a
decedent on an indebtedness for an express trust fund for which he
failed to account, if the claim is not authenticated by affidavit that
it is just and has not been paid: Mcllroy Banking Co. v. Dickson, 66
Ark. 327, 50 S. W. 868.
Waiver of Verification. — Undoubtedly, the executor or administra-
tor or the probate judge may object to a claim and decline to allow
it if it is not supported by the affidavit prescribed by statute, or
if the affidavit is defective and does not fulfill the statutory require-
ments. But it would seem that the omission to verify a claim may
be waived, and without doubt defects in the affidavit not seasonably
objected to may be regarded as waived: Hollinger v. Holly, 8 Ala.
454; Albcrtson v. Prewitt, 20 Ky. Law Eep. 1309, 49 S. W. 196;
Lyon's Exr. v. Logan County Bank's Assignee, 25 Ky. Law Rep. 1668,
78 S. W. 454; Seymour v. Goodwin, 68 N. J. Eq. 189, 59 Atl. 93.
In New Mexico a judgment allowing a claim against an estate which
is not sworn to is not void for want of jurisdiction: Gutierrez v.
Scholle, 12 N. M. 328, 78 Pac. 50. And in California the rule is that
the allowance of claims, upon a defective verification, is not void; it
is a judicial act, which entitles the claims to rank as acknowledged
debts of the estate, to be paid in due course of administration, al-
though the heirs, not being parties, are not concluded, and have the
right to question the allowance at the settlement of the estate: Es-
tate of Swain, 67 Cal. 637, 8 Pac. 497; Consolidated Nat. Bank v.
Hayes, 112 Cal. 75, 44 Pac. 469. But in Texas the statutes seem to
contemplate that the allowance of an unverified claim is of no force
and effect: Anderson v. Cochran, 93 Tex. 583, 57 S. W. 29.
In Alter v. Kinsworthy, 30 Ark. 756, it is said that the omission
to verify a claim may be taken advantage of at any time before trial
and final judgment. And in Guerin v. Joyce, 133 Cal. 405, 65 Pac.
•)72, it is said that when no objection to a verification is raised in an
action to recover thereon by demurrer or answer, the defendant should
not be allowed to make such objection at the trial.
Sufficiency of Verification. — The affidavit to support a claim against
the estate of a decedent iB only a verification: Empire State Min. Co.
Mitchell, 20 Mont. 55, 74 Pac. 81. In making it the requirements
the statute must be substantially complied with: Pico v. De La
rre, L8 I al. L22; Pi rkins v. Onyett, 86 Cal. 350, 24 Pac. 1024; but
tantial compliance is all the law demands: Griffith v. Lewin,
129 Cal. 51 172; Taggart v. Tevanny, 1 Ind. App. 339, 27
Estate of Le Clerc. 307
N. E. 511; Thompson v. Bailey, 1 Ky. Law Eep. 321; Cochran v. Gcr-
mania Nat. Bank, 8 Ky. Law Eep. 790; Foster v. Shaffer, 84 Miss.
197, 36 South. 243. It is not necessary to use or aver in the affidavit
the exact words of the statute, but only the substance: Story's Admr.
v. Story, 32 Ind. 137; Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E.
511; Crosby v. Me Willie, 11 Tex. 94. Still the affidavit must eon-
tain the substantial requisites prescribed by the statute: Gilmore v.
Dunson, 35 Tex. 435. In Beddow v. Wilson, 28 Ky. Law Eep. 661,
90 S. W. 228, a verified answer, containing the proper statutory aver-
ments, is held a sufficient affidavit of a claim.
An affidavit to an account that it is correct according to the claim-
ant's best knowledge and belief is declared insufficient in Dennis v.
Coker's Admr., 34 Ala. 611.
In some of the earlier cases it is decided that the omission of the
affiant's signature to the affidavit is not a fatal defect, at least if
the jurat is properly authenticated: Mahan v. Owen, 23 Ark. 347;
Alford's Admrs. v. Cochrane, 7 Tex. 485. But the statutes now gen-
erally contemplate that a claim cannot be duly presented unless the
affidavit is signed by the affiant, and it is held that the omission of
such signature is not cured by a properly signed jurat: Anderson v.
Cochran, 93 Tex. 583, 57 S. W. 29; Lanier v. Taylor (Tex. Civ. App.),
41 S. W. 516.
When it appears from the affidavit that the same person is "claim-
ant" and "affiant," the use of one of these words rather than the
other is immaterial: Davis v. Browning, 91 Cal. 603, 27 Pac. 937;
Warren v. McGill, 103 Cal. 153, 37 Pac. 144; Dorais v. Doll, 33 Mont.
314, 83 Pac. 884. And the omission of the word "dollars," in stat-
ing the amount of the claim, is not fatal: Hall v. Superior Court, 69
Cal. 79, 10 Pac. 257.
Claims must be accompanied by the original affidavit, rather than
copies: Ash v. Clarke, 32 Wash. 390, 73 Pac. 351.
Under the early probate practice in some jurisdictions the affidavit
to a claim could be made ore tenus. If the claimant stated as a
witness on oath the necessary facts required in an affidavit under the
statute, it would supply the absence of the affidavit: Overly's Exr.
v. Overly's Devisees, 58 Ky. (1 Met.) 117; Kincheloe v. Gorman's
Admrs., 29 Mo. 421. But the statutes now very generally demand a
written affidavit to support claims against the estate of a decedent.
If a statute requiring the verification of claims is regarded as
merely directory, then the oath may be administered after the claim
has been filed: Goodrich v. Conrad, 24 Iowa, 254. But if the statute
is regarded as mandatory, perhaps an affidavit given after the filing
of the claim comes too late: Hanna v. Fisher, 95 Ind. 3S3. In
Indiana, if a claim has been properly verified, acceptance of an addi-
tional unverified statement subsequently filed in open court, with
leave first obtained, is no ground for reversing a judgment for the
claimant: Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. 511. And
308 Coffey's Probate Decisions, Vol. 5.
in Arkansas, if a creditor presenting a claim for services rendered
the testator rendered an account for the same services to the testa-
tor, in which the amount was smaller, the smaller account may be
allowed without being sworn to, the original account having been
properly authenicated : Clark v. Bomford, 20 Ark. 440. The statu-
tory requirement of verification is not fulfilled by an affidavit, made
within the lifetime of the decedent, to the effect that he was then
justly indebted to the affiant and had paid nothing toward the satis-
faction of the demand: Wikerson v. Gorden, 48 Ark. 360, 3 S. W. 183.
Persons Verifying Claim. — The affidavit to a claim should ordinarily
be made by the claimant himself, not by his attorney, agent or other
representative: Beirne v. Imboden, 14 Ark. 237; Macoleta v. Packard,
14 Cal. 178; Zachary v. Chambers, 1 Or. 321. An affidavit by the
husband of the creditor is insufficient: McWhorter v. Donald, 39 Miss.
779, 80 Am. Dec. 97. And an attorney cannot prove a claim by swear-
ing that he has it for collection; he must prove it in the name of the
owner of the claim: Westfield v. Westfield, 13 S. C. 482.
The statutes of many states now recognize that a claim may be
verified by another person than the claimants, provided he is cogni-
zant of the facts: Mason v. Bull, 26 Ark. 164; Lanigan v. North, 69
Ark. 62, 63 S. W. 62; Hansell v. Gregg, 7 Tex. 223; Mcintosh v.
Greenwood, 15 Tex. 116; Heath v. Garrett, 46 Tex. 23. The rule ex-
pressed in some states is that when the affidavit is made by a person
other than the claimant, he must set forth in the affidavit the reason
why it is not made by the claimant; and under this rule it has been
held that an affidavit by an agent must state why the principal does
not make it: Perkins v. Onyett, 86 Cal. 348, 24 Pac. 1024; and that
an affidavit by an officer of a corporation must assign an excuse for
his company not making it when it does not disclose that the claim-
ant is a corporation: Empire State Min. Co. v. Mitchell, 29 Mont.
55, 74 Pac. 81. An affidavit by one of the attorneys of the claimant,
reciting that the claimant is a corporation and none of its officers
pt such attorneys reside in the county, is sufficient: Empire State
Mill. Co. v. Mitchell, 29 Mont. 55, 74 Pac. 81. A form of verification
of a claim presented by a corporation will be found in Consolidated
Nat. Bank v. Hayes, 112 Cal. 75, 44 Pac. 469. An affidavit to sup-
port the claim of a corporation must, under the Arkansas statute, be
made by its cashier or treasurer, not by its president: Lanigan v.
Ark. 62, 63 S. W. 62. And according to Cox v. Biggin-
hot ham's Admr., 25 Ky. Law Rep. 1057, 76 S. W. 1079, where the
nt of a bank is administrator, its claim against the estate may
be properly sworn to by its cashier, who is familiar with its books
ami accounts, and }>y its managing agent. The sufficiency of the affi-
davit of the treasurer of a corporation is passed upon in Deringer's
Admr. v. Deringer's Admr., 6 Moust. 528; Fidelity Ins. Trust & Safe
Co. v. .N'iven, 6 Houst. 64.
Estate of Le Clerc. 309
According to Gregory v. Bailey's Admr., 4 Harr. 256, the acting
partners of a firm must all join in probating a demand, but dormant
or retired partners, or partners permanently absent from the coun-
try, need not join. Generally, however, the affidavit of one joint
claimant is sufficient to authenticate the claim: Ashley v. Gunton,
15 Ark. 415. But it has been held that a debt due from the estate
of a decedent to six persons in severalty cannot be verified by the
oaths of three alone: Cecil v. Rose, 17 Md. 92.
The affidavit of a third person to a claim must state that the affiant
has knowledge of the correctness of the claim, and that it is due:
Pickle's Admr. v. Ezzell, 27 Ala. 623. An affidavit by an agent that
"he knows the within claim is just, true, and unpaid, as charged
against the estate of Jesse Beene, deceased," is sufficient: Beene's
Admr. v. Collenberger, 38 Ala. 647.
It has been said that an affidavit supporting a claim, made by an
agent, is not invalid because it does not show the agency: Heath v.
Garrett, 46 Tex. 23. But if the affidavit of an agent is defective for
failure to show that it is made by an agent, the defect may be cured
by amendment: Dawson v. Wombles, 104 Mo. App. 272, 78 S. W. 823.
In an early Missouri case it was said that an affidavit to a claim
can be made by an agent of the creditor only when he has the man-
agement and transaction of the business out of which the demand
originated: Peter v. King, 13 Mo. 143. But more recently in that
state it has been decided that an affidavit by an agent is not defec-
tive for not stating that he had such management, or had means of
knowing the verified facts. Those matters may be shown by evidence
aliunde: Dawson v. Wombles, 104 Mo. App. 272, 78 S. W. 823.
In Arkansas, where a claim is properly authenticated when pre-
sented to the executor or administrator, and is thereafter assigned, it
is not necessary for the assignee to verify the claim: Collier v. Trice,
79 Ark. 414, 96 S. W. 174.
The Kentucky statute requiring the verification of claims against
deceased persons has been held not to apply to the commonwealth:
Arnold's Exr. v. Commonwealth, 80 Ky. 135.
Amendment of Claim.
Eight to Amend in General. — An improper attempt to present a
claim against the estate of a decedent does not estop the claimant
from again presenting it in due form within the proper time: War-
ren v. McGill, 103 Cal. 153, 37 Pac. 144; Westbay v. Gray, 116 Cal.
660, 48 Pac. 800. And a statement may be amended to supply any
deficiency or omission in order to promote substantial justice, pro-
vided a different claim or a new cause of action is not added by the
amendment. In fact, courts are liberally disposed to permit the
amendment of claims a3 to formal or technical matters: Appeal of
Merwin, 72 Conn. 167, 43 Atl. 1055; Belleville Sav. Bank v. Borman
(111.), 7 N. E. 6S6, 10 N. E. 552; Wolfe v. Wilsey, 2 Ind. App. 540,
310 Coffey's Probate Decisions, Vol. 5.
2S N. E. 1004; Wise v. Outtrim, 139 Iowa, 192, 130 Am. St. Eep. 301,
117 N. W. 264; Simmons v. Tongue, 3 Bland, 341; Corson v. Waller,
104 Mo. A pp. 621, 78 S. W. 656. But "while it is proper," said the
court in Carter v. Pierce, 114 111. App. 5S9, "to permit an amended
claim, or an amendment to an original claim, to be filed for the pur-
pose of correcting the same, or making it more specific, or increasing
or reducing the amount thereof, the identity of the claim with the
original must appear. The substitution of one cause of action for
another entirely foreign thereto cannot be treated as an amendment."
The omission of the Christian name of the plaintiff in his statement
of a claim may be cured by amendment: Peden's Admr. v. King, 30
Ind. 181. And where a claim is filed by the administrator of another
state, the court may subsequently allow an amendment introducing
the real claimant as plaintiff instead of the administrator: McCall v.
Lee, 24 111. App. 585, affirmed in 120 111. 261, 11 N. E. 522.
Effect of Statute of Limitations. — Where a claim is so stated that
it apparently is barred by the statute of limitations, the allegation
of additional facts preventing the bar of the statute does not destroy
the identity of the claim. And after the expiration of the period
limited for presenting claims, a creditor should be permitted in fur-
therance of justice to amend his claim as to formal or technical mat-
ters: Wise v. Outtrim, 139 Iowa, 192, 130 Am. St. Eep. 301, 117 N.
W. 264; Kirman v. Powning, 25 Nev. 378, 60 Pac. 834, 61 Pac. 1090;
but it is then too late, by amendment or otherwise, substantially to
change his demand or substitute another therefor: Estate of Sullen-
berger, 72 Cal. 549, 14 Pac. 513. It is erroneous to allow one who
has filed a claim for a loan of money to the decedent to amend it,
after the expiration of the time prescribed for filing claims, by sub-
stituting a claim for a different loan, although the claim is for the
same amount: Dickey v. Dickey, 8 Colo. App. 141, 45 Pac. 228. And
a creditor will not be allowed to amend his claim by adding that it
is secured by mortgage, after the expiration of the time for the pres-
ontation of claims, and a refusal to permit the amendment is not
.. alable: Estate of Turner, 128 Cal. 388, 60 Pac. 967.
Estate of Spreckels. 311.
Estate of CLAUS SPRECKELS, Deceased.
[No. 6,977 (N. S.) ; decided February 15, 1910.]
Void Trust. — A Devise and Bequest of All the Eeal and Personal
estate of a testator to designated trustees "in trust," with directions
to pay over the net annual income to his widow for life, and upon
her death "to divide the estate into three equal parts, when one of
the parts shall be forthwith assigned, transferred, set over and deliv-
ered" by such trustees to one of the sons of the testator, whereupon
"the same shall be and become his absolutely and forever," and an-
other part to another son in the same manner, and the remaining
part to be continued to be held in trust by such trustees and the net
annual income paid to the daughter of the testator for life and upon
her death "to pay over the principal" of such part to her children or
grandchildren, as the case may be, "when the same shall become theirs
absolutely and forever," is as to the real estate a void trust.
Void Trust. — Such Devise and Bequest is Also a Void Trust as to
the personal property, it appearing therefrom and from the whole
will that the realty and personalty are united in one inseparable trust
scheme.
Void Trust. — Such a Devise and Bequest is also invalid as a devise,
notwithstanding the trustees and beneficiaries are the same persons
and the words therein that "the same shall become his absolutely and
forever."
Void Trust. — Such Devise and Bequest in so far as attempting to
create a trust in the daughter's part avoids the whole trust scheme,
being an undue suspension of the power of alienation, owing to the
uncertainty of the persons who ultimately are to take such part.
Will — Intention of Testator. — If a Testator Misapprehends the
legal effect of his expressed intent, the court is not authorized to
enter into his mind to ascertain his intention, but must gather his
meaning from his words.
Equitable Conversion. — In Order to Work an Equitable Conversion
of real property disposed of by will into personalty, the direction to
sell must be positive, irrespective of all contingencies and independent
of discretion.
Void Trust — Preservation as Power. — A void trust cannot be pre-
served as a power, as powers are no part of the statutory scheme of
trust in this state.
Trust — A Beneficiary may be a Trustee for himself.
Definitions. — The Term 'Transfer" has an application in California
to the transmission of title to real property and is of equivalent sig-
nification and effect to "giant."
312 Coffey's Probate Decisions, Vol. 5.
Devise and Legacy — Definition and Distinction. — The Term "Devise"
is confined exclusively to real, and the term "legacy,, to personal,
property.
Trust. — The Limitation of Suspension of the Power of Alienation
expressed in section 715 of the Civil Code applies to all trusts, whether
of real or personal property.
Application by Claus A. Spreckels and Rudolph Spreckels,
as trustees, for partial distribution. Demurrers by John D.
Spreckels and Adolph B. Spreckels, as heirs and persons
interested in the estate.
Cushing & Cushing, 0. K. McMurray and William Grant r
for applicants.
Morrison, Cope & Brobeck, Peter F. Dunne, Samuel M.
Shortridge and W. M. Hohfeld, for demurrants.
COFFEY, J. This is an application by Claus A. Spreckels
and Rudolph Spreckels, as trustees of the trusts created by
the will of Claus Spreckels, deceased, asking that their re-
spective shares in the property described in their petition be
distributed to them in accordance with law and the provisions
of said will.
It appears by the petition that Claus Spreckels died in
San Francisco, of which place he was a resident, on December
26, 1908, leaving real and personal estate therein, and a will
which was in regular course admitted to probate, and letters
testamentary issued thereupon to the persons named therein
as executors. The testator left him surviving his widow,
Anna Christina Spreckels; Claus A. Spreckels and Rudolph
Spreckels, sons and petitioners herein; a daughter, Emma C.
Ferris; and sons, John D. Spreckels and Adolph B. Spreckels,
the demurrants.
THE WILL.
The will is in these terms:
"I, Claus Spreckels, a citizen of the State of California,
and a residenl of the City of San Francisco in said State,
now presenl in Hie City, County and State of New York, be-
ing of Bound and disposing mind, ;ind not under restraint or
undue influence, do make, publish and declare this to be my
Estate of Spreckels. 313
last will and testament, hereby revoking all other wills by
me made.
' ' First : I declare that all the estate, whereof I may die
possessed, is the community property of my wife, Anna Chris-
tina Spreckels, and myself.
"Second: I hereby give, devise and bequeath unto my
Trustees hereinafter named, all my estate, real, personal and
mixed, of every nature, kind and description, wherever sit-
uate and however held, which is or may be subject to my
testamentary disposition at the time of my death, to have
and to hold the same, in trust, nevertheless, for the uses and
purposes, with the powers and in the manner hereinafter
mentioned, namely, to wit:
"(a) To pay over the net annual income thereof to my
wife during the term of her natural life.
"(b) Upon the death of my said wife, or upon my death
if she be not then surviving, to divide said estate into three
equal parts, when one of said parts shall be forthwith as-
signed, transferred, set over and delivered by my said Trustees
to my son Claus A. Spreckels, and the same shall be and be-
come his absolutely and forever, and another of said equal
third parts shall be forthwith assigned, transferred, set over
and delivered by my said Trustees to my son Rudolph Spreck-
els, and the same shall be and become his absolutely and for-
ever.
"(c) To pay over the net annual income derived from
the remaining equal third part of my estate to my daughter
Emma C. Ferris of Kingswood, England, wife of John Ferris,
during her natural life, upon her receipt without anticipa-
tion, and the same shall not be liable for her debts.
"Upon the death of my said daughter Emma, to pay over
the principal of said one-third part of my estate, with all
accumulations of the income therefrom, to her children then
living, and so that each child shall receive an equal share
thereof, and the same shall become his or hers absolutely and
forever.
"Children of her deceased children shall, however, take the
share which the parent would have taken had he or she sur-
vived my said daughter, and the same shall be divided be-
tween said children share and snare alike. Upon the death
314 Coffey's Probate Decisions, Vol. 5.
of my said daughter without child, children or grandchildren
her surviving, the Trustees shall pay over the principal of
said one-third part of my estate, with all accumulations of
income therefrom, to my said sons Claus A. Spreckels and
Rudolph Spreckels. share and share alike, and the same shall
become theirs absolutely and forever.
"Third: If my said son Claus A. Spreckels shall not be
living at the time of my death or surviving me be not living
at the time of my wife's death, then all the legacies and
devises given to him by this will shall go to his issue, to him
in lawful wedlock born, share and share alike, and the same
shall be and become theirs absolutely and forever. If my
said son Rudolph Spreckels shall not be living at the time of
my death, or surviving me be not living at the time of my
wife's death then all the legacies and devises given to him by
this will shall go to his issue, to him in lawful wedlock born,
share and share alike, and the same shall be and become their
absolutely and forever.
"Fourth: I make no provision in this will for my sons
John D. Spreckels and Adolph B. Spreckels for the reason
that I have already given to them a large part of my estate.
"Fifth: I hereby authorize my Trustees hereinafter named,
to invest and re-invest the trust funds hereinbefore provided
for in any securities which are approved by my said wife and
by them during her lifetime, in case she survives me, and
after her death, in any securities which said Trustees deem
best, whether the same are or are not investments to which
Executors and Trustees are by law limited in making invest-
ments, and to change or vary investments from time to time
as they may deem best. I authorize and empower my Ex-
ecutors and Trustees hereinafter named, to hold and continue
in their discretion, any security in which any of my property
may lie found invested at the time of my death, my intent
being that they shall be absolved and discharged from the
absolute legal duty of converting my estate into money, and
that they shall not be liable for any shrinkage in value by
on of the exercise of the discretion hereby reposed in
them.
"Sixth: I authorize and empower my Executors and Trus-
hereii named in their discretion to sell and dispose
Estate of Spreckels. 315
of any and all of my property, real or personal, wherever
situate and however held, either at public or private sale, and
at such time or times and upon such terms as may seem to
them meet and advisable, and to give to the purchaser or
purchasers of any of my said property all deeds, bills of sale
and other muniments of title which may be expedient or
necessary.
"Seventh: I nominate, constitute and appoint my sons
Claus A. Spreckels and Rudolph Spreckels as Executors of
this my last Will and Testament, and as Trustee of any and
all trusts herein created, and I direct and request that no
bond or other security be required of them as such Executors
or Trustees, or in any capacity in which they may act under
this Will.
"In Witness Whereof, I, Claus Spreckels, the Testator
above named, have to this my last Will and Testament, con-
sisting of five pages of paper, hereunto subscribed my name
and set my seal this 11th day of May, 1907.
"CLAUS SPRECKELS.
"The foregoing instrument consisting of five pages of paper
was here now at the date thereof signed, sealed, published and
declared by Claus Spreckels, the above-named Testator as and
for his last Will and Testament, in the presence of us, who,
at his request and in his presence and in the presence of each
other have hereunto signed our names as subscribing witnesses.
"WILLIAM W. COOK,
"327 W. 75th St., New York.
"THOMAS B. JONES,
"471 Stealford Road, Brooklyn, New York.
"RICHARD T. THOMPSON,
"147 Park Avenue, Brooklyn, New York."
THE ISSUE INVOLVED.
To this petition separate demurrers were interposed, both
presenting the same points, reducible to the one issue involv-
ing the validity of the testamentary trust.
The applicants are here not in their individual capacity
as beneficiaries, but as trustees, asserting their right to dis-
tribution under what they claim to be a valid trust created by
this will.
316 Coffey's Probate Decisions, Vol. 5.
If their contention be correct, they are entitled to the dis-
tribution of this property, or to so much thereof as to which
the trust may be declared valid; otherwise they cannot re-
ceive a decree in this proceeding.
In construing this will, it is not necessary to repeat the
familiar rules of construction and interpretation. That a
will is to be liberally construed so as to carry out the inten-
tion of the testator, and that a construction which involves
intestacy will not be favored; that the duty of the court is
to construe and not to construct; that the important item is
the intention of the testator; that the judicial endeavor should
be to uphold the will and not to break it down; that the in-
tention is the paramount rule; and that every word in the
instrument should be given full meaning, and no word re-
jected unless absolutely necessary, — all these constitute the
canons of construction that need no citations for their sup-
port.
What did testator intend? Tie certainly intended and ex-
pressly said that the two sons who are here demurring to this
petition should receive nothing, for the reason that he had
already given them a large share of his estate. (Clause Fourth
in the will.)
What was in his mind when testator made his will? The
terms of the instrument show that he had in mind six persons
primarily: his wife, his daughter, and his four sons; two of
these latter were excluded from his consideration because of
previous provision. His intention or his state of mind as to
;e two sons may be conceded, but it must be effectuated
according to the law of the land, which he is presumed to
know, for, as was said in the Estate of Young, 123 Cal. 343,
55 Pae. 1011, if he have misapprehended 1 lie legal effect of
his expressed intent, the court is not authorized to enter into
his mind to ascertain his intention but must gather his mean-
ing from his words.
SUMMARY OF THE TERMS OF THE WILL.
By his will, testator declared, first, that all the estate of
which he might die possessed was the community property of
his wife and himself; second, he gave, devised, and be-
qneathed unto his trustees all his estate, real, personal, and
Estate of Spreckels. 317
mixed, of every nature, kind and description, wherever sit-
uated and however held, which was or might be subject to
his testamentary disposition at the time of his death, to have
and to hold the same, in trust, nevertheless, for the uses and
purposes, with the powers and in the manner thereinafter
mentioned, to provide income for his wife ; upon her death, or
upon his own death if she be not then surviving, to divide
said estate into three equal parts, when one of said parts
should be forthwith assigned, transferred, set over and de-
livered by his said trustees to his son Claus A. Spreckels, the
same to be and become his absolutely and forever, and an-
other of said parts to go in the same manner to his son
Rudolph; to pay over the net income of the remaining third
part to his daughter Emma, during her natural life, and upon
her death to pay over the principal with accumulations of
the income therefrom to her children then living, so that each
child shall receive an equal share thereof, and the same should
become his or hers absolutely and forever. Children of her
deceased children should, however, take the share which the
parent would have taken had he or she survived his daughter
Emma, and the same should be divided between said children
share and share alike. Upon the death of his daughter Emma
without child, children, or grandchildren her surviving, the
trustees should pay over the principal of said one-third part
of the testator's estate, with all accumulations of income
therefrom to his said sons Claus A. and Rudolph Spreckels,
share and share alike, and the same should become theirs
absolutely and forever; third, that if his said son Claus A.
should be not living at the time of testator's death or surviv-
ing be not living at the time of testator's wife's death, then
all the legacies and devises given to him by the will should
go to his issue, to him in lawful wedlock born, share and
share alike, and the same should be and should become theirs
absolutely and forever; a like provision in the case of Ru-
dolph; fourth, he excludes his sons John D. and Adolph B.
Spreckels; fifth, he authorizes his trustees to invest and re-
invest the trust funds thereinbefore provided for in any
securities which are approved by his said wife and by them
during her lifetime, in case she survived testator, and after
her death, in any securities which said trustees deemed best,
318 Coffey's Probate Decisions, Vol. 5.
whether the same were or were not investments to which said
executors and trustees were by law limited in making invest-
ments and to change or vary investments from time to time, as
they might deem best; and the testator authorized and. em-
powered the said executors and trustees to hold and continue
in their discretion any security in which any of his property
might be found invested at the time of his death, his intent
being, as he declared, that they should be absolved and dis-
charged from the absolute legal duty of converting his estate
into money, and that they should not be liable for any shrink-
age in value by reason of the exercise of the discretion reposed
in them ; sixth, he authorized and empowered his executors
and trustees, in their discretion, to sell and dispose of any and
all of his property, real or personal, wherever situate and how-
ever held, either at public or private sale, and at such time or
times and upon such terms as might seem to them meet and
advisable, and to give to the purchasers all deeds, bills of sale,
and other muniments of title which might be expedient or
necessary.
The foregoing is a summary of the terms of the will which
the court should endeavor to execute, and it should not depart
from the directions of the testator unless constrained thereto
by the obligations of the law. Where his meaning is manifest
it should be carried out, if that meaning be expressed in the
terms of the law governing the subject matter. In the lan-
guage of a recent case we must not fly in the face of the
testator's express direction, as this would be violative of the
first duty of the court, namely, to effectuate his intention :
Estate of Washburn (Cal. App.), 106 Pac. 415. It may be
<! in this case, as was said in that, that the will bears the
earmarks of skilled professional workmanship; and that it was
drawn with a view to have its provisions faithfully followed
cannot be doubted. In that case the testator selected near of
kin ;is his trustees and devised the property to them in trust
with power to manage and control the property and pay over
the incomes to his widow and daughter for their support and
maintenance and to the successor of either of them.
In 1li'- ease jusl cited thrre is a discussion of the question
of v !'•<! and contingent remainders ami of the doctrine of
which may be considered in point.
Estate of Speeckels. 319
circumstances existing at date of will.
In construing this instrument, the petitioners as well as the
demurrants advert to the circumstances existing at the date
of the will, May 11, 1907, and the local conditions resulting
from the then recent conflagration. These circumstances and
conditions are too vividly impressed upon the memory to need
recital; but it is argued that they must have operated upon
the mind of testator and affected the testamentary act. AYhen
decedent executed this instrument he possessed, in round num-
bers, ten millions of dollars in property, realty more than fifty
per cent, and of the remaining personalty more than a million
in cash. In view of the necessity of the situation confronting
him. it was natural that he should contemplate a scheme
whereby this vast property should be preserved as long as
possible, and increased rather than diminished and dissipated.
By his energy and ability he had established a great estate,
and it was his ambition and design to secure and shield the
results of a long lifetime of labor by a provision protecting
the fruits of his toil and maintaining the memory of his name.
He was the architect of his own fortune, and he indulged the
fancy that he could do what he willed with his own. Acting
upon this assumption, he set about making a will to carry out
his cherished idea, to administer his entire estate through the
instrumentality of a trust. This idea pervades and permeates
the will ; it is its constant theme.
By the very first dispository provision he devises and be-
queaths his entire estate to his trustees, "to have and to hold
the same in trust." This language is clear and explicit; no
amount of argument can divest these terms of their meaning.
This document was drawn with great care and by a lawyer
skilled in the use of words, and it is, therefore, to be presumed
that the expressions employed were intended to have a legal
signification. It is not the case of a layman writing his own
will, without adequate attorney's aid, but that of a testator
invoking professional assistance of a high grade to discharge
a task implying expert knowledge united with readiness and
dexterity in its application.
It must be considered, if this be conceded, that every word
used in this instrument meant what it said, and by these words
and phrases, as judicially defined, we shall ascertain the in-
320 Coffey's Probate Decisions, Vol. 5.
tention of the testator. He started out to create a testamentary
trust. That was his primal purpose, as we have seen. He then
provides, through this trust, (a) for an income for his wife;
(b) upon her death for a division of the estate, by the trustees,
into three equal parts, each one to be segregated and trans-
ferred to each of the beneficiaries, Claus A. and Rudolph each
to have his part absolutely and forever; and (c) Emma's
share of the corpus to remain intact for the benefit of her
children living at the time of her death, she to have an in-
come meanwhile, paid out of the principal, through the trust,
and failing children or grandchildren, the trustees to pay-
over the principal to themselves as beneficiaries.
It appears to be admitted that the first trust purpose de-
clared by the will, to provide an income for the wife, is valid ;
but it is asserted that the second and third trust purposes
are void, because neither is authorized by the statute : Civ.
Code, sec. 857. Testator directs that upon the death of his
wife the trustees are to "divide" said estate into three equal
parts, and hereby hangs the discussion as to the meaning of
this word "divide" in a legal sense. Petitioners maintain
that the demurrants have misconceived the meaning of this
word, and that it is susceptible of no such interpretation as
they have assumed; that it does not signify "partition" in
the narrow, restricted sense of physical separation into parts,
which, in the circumstances of this case, would be impractic-
able, if not impossible, but it is a "division" or "partition"
to be accomplished by a sale, and division of the proceeds;
and, in that event, it is a valid trust under the provisions of
the Civil Code; for a physical division could not have been
contemplated by testator, and the testament may be construed
as disposing of the entire estate as personal property; and,
hence, an equitable conversion of the whole is worked as of the
date of the death of the testator or, at least, as of the date
of the death of his widow. It is argued that testator never
intended a physical partition, and that he used no such word
nor any term of sy nonymous import; yd we find, according
to W( ' '• p, thai "divide" means to make partition, and that
"partition" means to "divide into shares," as, "to partition
an e tate"; bu1 petitioners contend lhat even if demurrants
Ix- coi r< 't in their view that it is a trust to partition and con-
Estate op Spreckels. 321
vey, still the will may be sustained, if it shows that it was the
intention of the testator to create a trust to sell his property
and apply or dispose of the proceeds. Was this the intention
of the testator? Does this instrument exhibit an intention to
convert into cash his real estate and to treat all as personalty ?
Is it correct to conclude that if clause (c) in paragraph sec-
ond may be construed as meaning personahy, so must all the
remainder of the will? What is equitable conversion? It is
that change in property by which, for certain purposes, real
estate is considered as personal, and personal as real. How
is this change to be effected? Section 1338 of the Civil Code
of California says that when a will directs the conversion of
real property into money, such property and all its proceeds
must be deemed personal property from the time of the tes-
tator's death; and the supreme court, in commenting upon
this section in the Estate of Walkerly, 108 Cal. 652, 49 Am.
St. Rep. 97, 41 Pac. 772, says that the rule of equitable con-
version amounts merely to this, that where there is a mandate
to sell at a future time, equity, upon the principle of regard-
ing that as done which ought to be done, will, for certain pur-
poses and in aid of justice, consider the conversion as effected
at the time when the sale ought to take place, whether the
land be then really sold or not.
THE THEORY OP EQUITABLE CONVERSION.
Petitioners insist that testator contemplated a conversion
and quote from a New Jersey case, Wurts' Exr. v. Page, 19
N. J. Eq. 365, where the testator authorized and empowered
his executors, in case it should at any time be deemed ad-
visable by them, to sell and convey any part of his real estate.
Chancellor Zabriskie said in that case that wherever a testator
has positively directed his real estate to be sold and distributed
as money, it will be considered for the purposes of succession
as personal. But in that case, there was no such direction.
The direction to sell was contained in the fourth item of the
will, and simply authorized and empowered his executors to
sell any part of his real estate in case they should at any time
deem it advisable. This was not a direction to convert, but
on the contrary a seeming direction to let it remain as real
estate, until it became advisable from time to time to sell it.
Prob. Dec, Vol. V — 21
322 Coffey's Probate Decisions, Vol. 5.
If this were the only part of the will to guide the court, the
real property could not be considered as converted into per-
sonal property until actually sold; but the question of con-
version is a question of intention ; and the real question was,
Did the testator intend that his lands should be converted
into money at all events before distribution? In a Pennsyl-
vania case, Fahnestock v. Fahnestock, 152 Pa. 56, 34 Am. St.
Rep. 623, 25 Atl. 313, it was said that while a mere naked
power of sale will not work a conversion of a testator's real
estate, yet where it is clear from the face of the will that it
was testator's intention that the power should be exercised,
it will be construed as a direction to sell and will operate as
an equitable conversion. Where it plainly appears that effect
cannot be given to material provisions of the will without the
exercise of this power, the conclusion is irresistible that a
conversion is as effectually accomplished by the will as if it
contained a positive direction to sell.
Petitioners contend that the grammatical context of the
will shows that the intention was to protect the trustees in
the exercise of their discretion ; that not only do the words
of the will lead to such a construction, but it is difficult to see
how a "partition" could be made without a sale and a di-
vision of the proceeds ; the main object of the testator was to>
provide an income for his widow during her life; and, if it
should be necessary to sell during her lifetime, that is within
the power of the trustees. Upon this point both parties rely
upon the general doctrine of equity jurisprudence, touching
this subject matter, as stated by Professor Pomeroy in his
work, third volume, sections 1159, 1160: "Equity regards
that as done which ought to be done. The true test in all
such cases is a simple one: Has the will or deed creating the
trusl absolutely directed, or has the contract stipulated, thai
the realty should be turned into personal, or the personal
te be turned into real. The whole scope and meaning of
the fundamental principle underlying the doctrine are in-
volved in the existence of a duty. For, unless the equitable
'ought' exists there is no room for the opera I ion of the maxim
'Equitj regards that as done which ought to be done.' The
rule is, 1 1nn Tore, firmly settled that in order to work con-
version while the property is yet actually unchanged in form
Estate op Spreckels. 323
there must be a clear and imperative direction in the will,
deed, or settlement, or a clear imperative agreement in the
contract to convert the property, that is, to sell the land for
money, or to lay out the money in the purchase of the land.
If the act of converting, that is, the act itself of selling the
land, or of laying out the money in land, is left to the option,
discretion or choice of the trustees or other parties, then no
equitable conversion will take place because no duty arises
to make the change, no duty to make the change rests upon
them."
It is by the law of California, and by the interpretative
decisions of our supreme court, that we are to construe this
will, when those decisions are sufficiently illuminative without
recourse to other sources.
We have seen what the statute says: Civ. Code, sec. 1338.
Its language is too clear and explicit to admit of a doubt as
to its meaning. In the absence of a direction by the testator
for a sale of the property we are not concerned with the
doctrine of equitable conversion: Campbell v. Campbell, 152
Cal. 207, 92 Pac. 184. It is not to be inferred from the
language employed nor from the circumstances existing at
the time of the execution of the will, that the testator in-
tended a conversion in the absence of imperative directions,
expressed or necessarily implied, to the executors to sell the
real estate. In the circumstances of this estate to command
a sale might be to compel a sacrifice, but a discretionary
power might meet the exigencies of the situation and such a
power was reposed in the trustees. To work a conversion
the direction to sell must be positive, irrespective of all con-
tingencies and independent of discretion. The citations are
cumulative on this point, and all tend to the same conclusion,
as stated by Story : 2 Equity Jurisprudence, sec. 1214. The
inclination of courts of equity upon this branch of juris-
prudence is not generally to change the quality of the prop-
erty, unless there is some clear intention or act by which a
definite character, either as money or as land, has been un-
equivocally fixed upon it throughout ; and if this intention do
not clearly appear, the property retains its original char-
acter: Janes v. Throckmorton, 57 Cal. 382. Petitioners urge
that if there be any doubt about the intention or the inter-
8:24 Coffey's Probate Decisions, Vol. 5.
pretation in this respect in the mind of the court, it should
be resolved in favor of trustees. But such is not the law as
laid down in this state, if it be so anywhere else. All cases
upon this subject recognize that conversion of real estate is
not favored, and in many it is stated in so many words. The
intention must be clear and the necessity absolute. A mere
discretionary power of sale is not sufficient. This is the sum
of all the decisions upon this proposition; but each case of
this kind must stand for itself and, as has been many times
said, no two are so close akin that similar cases may not be
differently decided. It is as true to-day as it was over a
century since, when it was remarked by Mr. Justice Wash-
ington, that it seldom happens that two cases can be found
precisely alike, and that, except for the establishment of
general principles, we receive little aid from adjudged cases
in the construction of wills. The difficulty is in the applica-
tion of these principles to a given case, and in resolving that
case the judicial investigation must be limited to the terms
of the testament: Estate of Granniss, 142 Cal. 1, 75 Pac. 324.
The will itself we must have constantly before us; its very
words must be ever present to our physical and mental eye;
it is the written law for our guidance, and from its text we
may not depart with impunity. It is only in this manner
and by this method that we can ascertain the intent of the
testator.
Guided by the general principles of construction, and aided
to such extent as we may be by authorities, we cannot find
in the will of Claus Spreckels an intent to compel a conversion
of his real estate into cash. There is not only no duty im-
posed upon the trustees in this respect, but there is an ex-
empt inn from any legal obligation of making such conversion
;nnl an absolution from liability for loss by reason of the
exercise of the discretion reposed in them.
WHAT IS SOUGHT IN THIS PROCEEDING.
Wha1 is it that the petitioners seek in this proceeding?
They do qo1 demand a decree that the property be distributed
to them as devisees individually, but as trustees maintaining
the validity of the trust. Their prayer is thai their respective
shares is tin- property of the estate be distributed to them in
Estate of Spreckels. 325
accordance with law and the provisions of the will, and that
the executors be required to deliver to them the possession
of the real and personal property of which distribution is
sought, and that in the event that their shares in and to the
whole of the property cannot be distributed to them, that
their shares in and to so much of it as can be distributed be
so distributed.
This prayer is comprehensive. If it be not lawful to give
them what they ask, then they desire to obtain what the law
may authorize the court to grant. "We have already said that
the will furnishes the rule for the court, and we must abide
by its text and terms. The will is the immediate and proxi-
mate muniment of title; the interest to be decreed is given
by that instrument, not by the formal conveyance, which is
the mere conduit of transmission. The will provides, in
clause (b) of paragraph second, that upon the death of the
wife the trustees shall divide the estate into three equal parts,
when one of said parts shall be assigned, transferred, set over
and delivered by said trustees to the son Claus A., "and the
same shall be and become his absolutely and forever," and
another of said equal third parts to be in like manner and
terms set over to Rudolph. Upon this sentence "and the same
shall be and become his absolutely and forever," repeated in
clause (c) and in paragraph third, the petitioners contend
that testator designed to convey to them an absolute fee, not-
withstanding the language of the first part of paragraph
second in which he gave, devised, and bequeathed to them as
"trustees" "to have and to hold the same in trust, never-
theless, for the uses and purposes, with the powers and in the
manner" mentioned in clauses (a), (b) and (c). But in
their petition, they ask to have the property distributed to
them as trustees; they do not pray a distribution to them as
direct devisees, but rest upon the proposition that this is a
valid trust and desire a decree to that effect. In their argu-
ment, however, petitioners claim that the language imports a
clear and distinct devise ; that when clause (b) says that upon
the death of his wife the trustees are "to divide the said
estate into three equal parts" the words mean merely a direc-
tion as to what to do in the event indicated, to determine the
disposition the trustees shall make; that they are not intended
32G Coffey's Pkobate Decisions, Vol. 5.
to convey the title ; that it was not the intention of the testator
to make the trustees his conveyancers, but he intended to
convey to them absolute fee, not to engage in the idle form of
conveying as trustees title to themselves as individuals, but
they took directly from testator, "the same shall be and be-
come his absolutely and forever"; the testator was his own
conveyancer.
THE MANICE CASE CONSIDERED AND COMPARED.
Petitioners cite Manice v. Manice, 43 N. Y. 303, a cita-
tion also relied upon by demurrants. This is a handy case,
both sides asserting that it is on "all-fours" with their
respective contentions. It has been alluded to as absolute
authority forty-five times in this controversy, and petitioners
claim that it is to be superimposed upon the facts of the case
at bar, and that the law and the facts absolutely dovetail, and
that this case in that respect comes exactly within the prin-
ciples laid down by the court in the Manice case, and that the
language there may be applied appropriately to the situation
here. In the Manice will, it is asserted in this argument,
the language is very similar to the Spreckels will, "I hereby
'_ r ive, devise, and bequeath," in clause (b), "and the same
shall be and become his absolutely and forever," in clause
(c), "and the same shall be and become his or hers absolutely
and forever," and like words in paragraph Third, "and the
same shall be and become theirs absolutely and forever."
Petitioners in argument contend that these words are apt
words of devise in the will under consideration as are the
words in the Manice case, and that in each instrument they
were inserted for the same purpose and in each they have
the same effect. In the Manice case the court said: "By
reference to the language of the gifts of these shares, it will
be Been that each share is given by words of present gift.
In respect to the sons the words are: 'And upon the furl her
trust to convey, transfer and pay over to my son William
I).' Porreart Manice in fee simple, to whom I give, devise and
bequeath the same, or in ease of his death to his then living
lawful issue, three of said equal twelfth parts.' " In the
e nf the son, Edward Augustus Manice, again ho says: "I
give, devise and bequeath" the same to him, and in case of
Estate of Spreckels. 327
i
the trusts for the daughters again he says: "I give, devise
and bequeath" to them accordingly. And as -the supreme
court of New York, the court of errors, said in Hobson v.
Hale, 95 N. Y. 613, in the Manice case the dispositions of the
testator to his sons, and to the trustees for his daughters,
proceeded by words of direct present gift, bequest and devise.
' ' Thus it will be seen that the testator in each case makes a
present gift directly to each of his sons or their issue, and
to trustees for each daughter, of a specified share of his
residuary estate, to be ascertained and meted out to them
respectively by the executors, pursuant to the process which
he has prescribed."
In the sentence quoted the court declared that the words
imported direct present gift, bequest and devise, but, as will
appear by a comparison of testamentary texts, these words
"give, devise, and bequeath" are not found in the same rela-
tion in the Spreckels will, and the petitioner, in qualifying
his first contention as to identity of terms and tenor, says
that he does not intend to claim more than that words of
similar import are found in this instrument, and that he
relies upon the Manice case for its principle and not neces-
sarily for its language. In the Manice case the court found
direct devises under the words of the will. Such words are
not found here, nor can such intent be imputed to testator
unless it is so clearly and unequivocally expressed that no
other construction can be placed upon his language : 43 N. Y.
368.
The case of Manice v. Manice involved the construction of
a long and complicated will, and it would serve no purpose,
except to lengthen this opinion, to undertake to analyze it to
the extent that was done in argument. That it was difficult to
deal with may be understood by quoting the remarks of Mr.
Justice Sutherland, when he thought he had found finally and
forever the correct interpretation :
"I think it right to say in conclusion, that this will was
evidently drawn by an intelligent lawyer, who has read the
statutes, and knew the meaning of words, for a persistent
client, who was determined to have his own way, by paying
for it; and though the examination of the questions relating
to the sixteenth clause of the will has cost me some labor,
328 Coffey's Probate Decisions, Vol. 5.
yet I have the charity to wish, that if the lawyer who penned
and worded the sixteenth clause of this will should ever pen
or word another like it, that it may never be his judicial duty
to say whether it, or any part of it, is valid, under or by the
statutes": Manice v. Manice, 1 Lans. (N. Y..) 318, 380.
The Manice case does not aid the petitioners; its language
and its principle seem to be contrary to their contention.
In the New York case there were words of direct devise
and bequest, as we have seen in the quotation ; and afterward,
when the trust was declared void, these words operated to
vest the estate in the children. The court of final appeal
declared that the testamentary trusts were not authorized by
the statute, but were proper subjects of a power, "and are
not void because the testator has attempted to put them in
the form of trusts, but can be executed as powers." Thus
under the Revised Statutes of New York the testamentary
intention was carried out through the artifice of a statutory
"power." Void as a trust, valid as a power, by virtue of the
strict terms of the statute. In California the decision might
have been different, for declaring the trust void, the court
could not have recouped by calling it a power ; because powers
are no part of the statutory scheme of trusts in this state:
McCurdy v. Otto, 140 Cal. 54, 73 Pac. 748.
POWERS IN TRUST DO NOT NOW EXIST IN CALIFORNIA.
For a short period such powers existed, but the statute was
repealed, and since that time a void trust may not be pre-
served as a power: Civ. Code, 860, 861 (see Deering's ed.
1909) ; Kerr's Cyc. Codes, Civ. Code, p. 782. See California
Commissioners Annotated Code, 1872; Estate of Fair, 132 Cal.
557, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000.
Petitioners ;issert that the rule laid down in the Manice
is the law in California. If that be so, then, as we have
Been, the citation does not serve them, because it held the
trust term void, the power taking its place, and here we have
'f) power; Imi) the petitioners insist that the literal construc-
tion of the Language in this will demands a decision in their
favor; that there is no room for doubt as to what testator
meanl when he said Umt if his son should not be living at the
time of his own death or that of his widow, then all the
Estate of Spreckels. 329
legacies and devises given to him should go to his issue, "and
the same shall be and become theirs absolutely and forever."
The intention is always the guide where the words are apt.
In this will, it is asserted by applicants that the language
clearly indicates the intent of the testator; if the son should
die without descendants there is no substitution ; it is only
in the event of leaving issue in the contingency provided in
the instrument that there is a substitution; otherwise it re-
mains in the estate. It is claimed that the testator intended
that the sons should take title before any partition; and, if
he intended that his estate should vest in his sons at the time
of his death or at the time of the death of his widow, then
he could not have intended that they would take title only
under a partition. Numerous cases and text-books are cited
to support these propositions; but they are all reducible to
the one formula, that it is an established rule that his words
must determine his intent. He did not devise and bequeath
by apt words directly to his sons individually, but he gave
to them as trustees, "in trust," for certain purposes, and, in
a certain contingency "to divide" the estate so given into
parts each to be by them as such trustees, "assigned, trans-
ferred, set over, and delivered" to each of themselves indi-
vidually.
This is the language of the will. Is it to be taken literally?
"To divide the estate into three equal parts." Petitioners
assert that it is absurd to contend that he intended that the
estate should be physically partitioned, there was no such idea
in the mind of testator; that it is inconceivable that he con-
templated such a contingency; it would be unreasonable and
impracticable; not only unreasonable but unlawful; that he
could not make his trustees do this and at the same time
carry a valid trust because of the relation in which they
would be placed with respect to the beneficiary under the
remaining trust; such a project could not have been accom-
plished; there is no trust beyond life of widow; the vesting
of title in the two sons was not dependent upon any other
event than the death of widow, at which time, "then," the
title in the sons became complete as a devise; that there was
no intestacy possible in the mind of testator, that this is clear
from the language employed by him, it was plainly his pur-
330 Coffey's Probate Decisions, Vol. 5.
pose that the title should vest in his two sons immediately
upon his own death ; they took a vested remainder, not a con-
tingent remainder; nor "a contingent equity to enforce a
performance of the trust"; no such construction is reason-
able and will not be maintained unless the court is constrained
thereto; the testator never intended to create a trust, but to
devise absolutely to the two sons here petitioning : Estate of
Fair, 132 Cal. 529, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac.
1000.
It is persisted by petitioners that the testator never in-
tended to create a trust, but to make to them individually an
absolute devise, and it is repeated that it would be absurd,
unreasonable, impracticable, and unlawful, that he should at
the same time make them trustees and beneficiaries, notwith-
standing what he says, in the language quoted. It is certainly
not unlawful, even under some of the authorities cited by
petitioners: Lewin on Trusts; Perry on Trusts.
Our own supreme court, in a very recent case — Cahlan
v. Lank of Lassen County (Cal. App.), 105 Pac. 765 — dc-
eided October 22, 1909, decided that even a beneficiary might
be made trustee of the fund created for his own benefit, and
cited Nellis v. Rickard, 133 Cal. 617, 85 Am. St. Rep. 227.
66 Pac. 32, which said that it is undoubtedly true, as a gen-
eral proposition, that where an equitable estate and a legal
estate meet in the same person, the former is merged in the
latter, if the two estates are commensurate and coextensive,
and if the merger is not contrary to the intention of the
parties : Lewin on Trusts, 14, 665 ; Perry on Trusts, sees. 13,
347. And, ordinarily, a cestui que trust should not be ap-
pointed trustee. But the authorities hold that a cestui que
trust is not absolutely incapacitated from being a trustee, "as
the court itself, under special circumstances appoints a cestui
que trust a trustee. The question is one merely of relative
fitness": Lewin on Trusts, 665; Perry on Trusts, sees. 59, 297,
and eases cited; Tyler v. Marye, 95 Cal. 160, 27 Pac. 160, 30
Pa ■ 196, where a trustee was also a beneficiary. It was con-
tended that there could be no merger in that case because the
beneficiary took no interest, the entire legal and equitable
estate passing to the trustee, the beneficiary having only the
right to have the trust enforced (In re Walkerly, 108 Cal.
Estate of Spreckels. 331
627, 49 Am. St. Rep. 97, 41 Pac. 772) ; but the court said
that it was not necessary to decide that point; and it is in-
ferred that it was not necessary so to decide because there
was no absolute or intrinsic impossibility or impracticability
in the beneficiary and the trustee being the same person.
The Civil Code says that technical words are not necessary
to give effect to any species of disposition by a will, and that
the term "heirs," or other words of inheritance, are not
requisite to devise a fee, and a devise of real property passes
all the estate of the testator, unless otherwise limited: Civ.
Code, sees. 1072, 1328, 1329.
MEANING OF THE WORD "TRANSFER."
Particular attention is directed to the Estate of Dunphy,
147 Cal. 95, 81 Pac. 315, in which it is said that the word
"transfer" does not necessarily import a passing of title to
land by a trustee's conveyance, and that it would not have
that meaning even if there had been a direction to the trustees
to transfer; and the words "shall be paid," while inapt as
applied to real property, simply mean, unless we are to defeat
the testator's will by holding them to have no meaning, that
the property is devised to the remaindermen.
In the same case, the Estate of Dunphy, Mr. Justice Mc-
Farland said:
"The principal contention of appellant is. that by this will
the testator undertook to create an invalid trust to convey
real property to beneficiaries; that its terms are in this re-
gard substantially the same as those of the attempted trust
which was held void in the Estate of Fair, 132 Cal. 533, 84
Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000, and that the said
Fair case is determinative of the question here under discus-
sion in favor of appellant. We do not think that this conten-
tion is maintainable.
"Now, in the Fair case it was held by the court that the
testator devised all his property to his trustees and provided
no way by which it could vest in any other person except
by a conveyance of said trustees, and moreover, clearly ex-
pressed his intent that it should so vest only by a conveyance
by the trustees. The only words used on the subject in that
will constituted express directions to the trustees to 'transfer
332 Coffey's Probate Decisions, Vol. 5.
and convey.' That express direction was used many times,
and, in the opinion of the majority of the court, the will con-
tained no language that could possibly be construed into a
direct devise to the beneficiaries or any intent t'o make such
devise, and that, on the contrary, it clearly appeared that he
did not intend to make such a devise, but did intend that no
title should pass to a third person except by a conveyance by
the trustees."
Petitioners contend that this language supports their propo-
sition that the testator by the use of the expressions had
but one design in mind ; that the meaning .of the words was
clear and applicable to only one idea, that of an absolute
devise to his sons to take effect in a certain event, and that
it was never intended by them to create a trust. The con-
struction contended for by demurrants demands that before
Claus and Rudolph can take title to the property they must
do so as trustees and divide into three equal parts and must
assign, transfer, set over, and deliver two of these parts to
themselves. Such a construction as this, assert petitioners,
will not be adopted by the court, if any other consistent with
testacy can be placed upon it. In this case, it is claimed,
everything conspires to the conclusion that it was not the
testator's intention that the estate should go to the sons by
way of trust ; and it is just exactly the converse of the situa-
tion in the Fair case, where the court found that every-
thing pointed to the fact that it was the testator's intention
that the property should go to the persons designated, but
by way of trust. Upon this point petitioners are very em-
phatic, and it is worth while to dwell upon the matter, be-
cause the Estate of Fair seems to be considered as the leading
authority. Petitioners assert that there is as much difference
between the two cases as there is between daylight and dark-
ness, and that one is diametrically the opposite to the other;
that they are antipodal; that the expressions used in the Fair
ease do not, import a direct devise, and that in the Spreckels
case the words used can have no other meaning. On the other
hand, it is claimed with confidence that the Spreckels trust
is governed by the decision in the Kstate of Fair.
In resped to the use of the word "transfer," the Estate of
Pcabody, 1-1 Cal. 173, 97 Pac. 184, is cited to show the sense
Estate of Spreckels. 333
in which the word is used, but it is sufficient to say of that
case that the will was that of a person unfamiliar with tech-
nical terms, and unacquainted with the technical sense. It
was within the rule of the statute which says that technical
words in the statute are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or
unless it satisfactorily appears that the will was drawn solely
by the testator, and that he was unacquainted with such
technical sense: Civ. Code, sec. 1327. In the Peabody case
such was the showing, and, hence, it does not apply where the
circumstances are contrary.
As to the meaning of terms we are cited to the common
dictionaries. Webster defines "transfer," as a noun, "the
conveyance of right, title or property, either real or personal,
from one person to another, either by sale, by gift, or other-
wise. "
The Century defines "transfer," verb, "to convey as a
right from one person to another" ; as a noun, "the conveyance
of right, title, or property, either real or personal, from one
person to another, either by sale, by gift, or otherwise. In
law it usually implies something more than a delivery of
possession. Transfer in English law corresponds to convey-
ance in Scots law, but the particular forms and modes
under the two systems differ very materially. ' ' In the same
dictionary we find the word "convey" defined, "in law," to
transfer; pass the title to by deed, assignment, or otherwise;
as to convey lands to a purchaser by bargain and sale. The
word "conveyance" is likewise defined: (a) In law, the act
of transferring property from one person, as by lease and
release, bargain and sale; transfer; (b) the instrument or
document by which property is transferred from one person
to another; specifically a written instrument transferring the
ownership of real property between living persons.
In the proposed New York Civil Code, chapter 2, is
headed "Transfer of Real Property." Article 1 speaks of
"mode of transfer"; section 483 treats of "requisites to con-
vey certain estates": "An estate in real property, other than
an estate at will or for a term not exceeding one year, can be
transferred only by operation of law, or by an instrument in
writing, subscribed by the party disposing of the same, or by
334 Coffey's Probate Decisions, Vol. 5.
his agent, thereunto authorized by writing": 2 Rev. Stats.
134, sec. 6.
In the Peabody case, Mr. Justice Shaw said that outside of
this state it cannot be said to have a well-defined legal mean-
ing, especially when used as a verb. But within this state
we find its definition in the Civil Code.
"Transfer is an act of the parties, or of the law, by which
the title to property is conveyed from one living person to
another": Civ. Code, sec. 1039.
"Property of any kind may be transferred, except as
otherwise provided by this article": Civ. Code, sec. 1044.
"Grant," "conveyance," or "bill of sale": Civ. Code, sec.
1053.
Redelivery of real property: Civ. Code, sec. 1058.
Transfer used as the synonym of convey.
In this section the statute seems to assume retransxer as
the synonym of reconvey.
Mode of transfer of real property: "An estate in real prop-
erty, other than an estate at will or for a term not exceeding
one year, can be transferred only by operation of law, or by
an instrument in writing, subscribed by the party disposing
of the same, or by his agent thereunto authorized by writ-
ing": Civ. Code, sec. 1091.
Effect of transfer: "A grant made by the owner of an
estate for life or years, purporting to transfer a greater estate
than he could lawfully transfer, does not work a forfeiture
of his estate, but passes to the grantee all the estate which the
grantor could lawfully transfer": Civ. Code, sec. 1108.
"Where a grant is made upon condition subsequent and is
subsequently defeated by the nonperformance of the condi-
tion, the person otherwise entitled to hold under the grant
musl reconvey the property to the grantor or his successors,
by grant, duly acknowledged for record": Civ. Code, sec.
Ill
I; lording transfers of real property: "Any instrument or
judgment affecting the title to or possession of real property
may I e recorded under this chapter": Civ. Code, sec. 1158.
Under this head: "livery conveyance of real property
acknowledged or prove.! and certified and recorded as pre-
scribed by law from the time it i.s filed with the recorder for
Estate of Spreckels. 335
record is constructive notice of the contents thereof to sub-
sequent purchasers and mortgagees: and a certified copy of
any such recorded conveyance may be recorded in any other
county, and when so recorded the record thereof shall have
the same force and effect as though it was the original con-
veyance, and where such original conveyance has been
recorded in any county wherein the property therein men-
tioned is not situated a certified copy of such recorded con-
veyance may be recorded in the county where such property
is situated with the same force and effect as if the original
conveyance had been recorded in such county": Civ. Code,
sec. 1213.
Unlawful transfers: "Every instrument, other than a will,
affecting an estate in real property, including every charge
upon real property, or upon its rents or profits, made with
intent to defraud prior or subsequent purchasers thereof, or
encumbrancers thereon, is void as against every purchaser or
encumbrancer, for value, of the same property, or the rents
or profits thereof": Civ. Code, sec. 1227.
Now, what does all this mean?
It means simply that whatever the mode, by succession,
by will, or by deed, the title is transmitted. Future interests
pass by succession, will, and transfer, in the same manner
as present interests: Civ. Code, sec. 699.
What is a joint interest? It is one owned by several per-
sons in equal shares, by a title created by a single will or
transfer, when expressly declared in the will or transfer to be
a joint tenancy, or when granted or devised to executors or
trustees as joint tenants : Civ. Code, sec. 683.
When is a trust presumed?
"When a transfer of real property is made to one person,
and the consideration therefor is paid by or for another, a
trust is presumed to result in favor of the person by or for
whom such payment is made": Civ. Code, sec. 853.
In section 863, Civil Code, it is prescribed that, except as
afterward otherwise provided, every express trust in real
property, valid as such in its creation, vests the whole estate
in the trustees, subject only to the execution of the trust.
The beneficiaries take no estate or interest in the property.
but may enforce the performance of the trust j notwithstanding
336 Coffey "s Probate Decisions, Vol. 5.
this, the author of a trust may, in its creation, prescribe to
whom the real property to which the trust relates shall be-
long, in the event of the failure or termination of the trust,
and may transfer or devise such property, subject to the
ution of the trust: Civ. Code, sec. 864.
Thus it should seem that in California the term "transfer"
has an application to the transmission of title to real prop-
erty.
the word "transfer" appropriately applied.
It would seem from the instances cited from the statutes
that the word "transfer" has an appropriate application to
the transmission of title to real estate, and the citations from
other states seem to reinforce this inference. In Thompson's
Estate, 1 N. Y. Supp. 215, the court said: "A power of sale
with respect to his real estate, discretionary in form, was
given to the executors. This clause, taken in connection with
the other dispositions of the will, evinces no design on the
part of the testator to have his real estate absolutely converted
into money, either upon the discontinuance of the trust
created for the widow, or upon the son reaching majority,
when the trust instituted for his benefit would end. The
terms 'to pay' and 'deliver over,' used in the clause referred
to, are more appropriately applied to a disposition of per-
sonal estate, and would ordinarily have some influence in
determining whether or not that is the character of the fund
which the testator intends the beneficiary should receive.
Here, however, the testator has also used the term 'transfer,'
and obviously, I think, with reference to the real estate men-
tioned in the clause, and to evidence a purpose to have his
real estate, or such part of it as it might be possible to trans-
fer to his son in specie, so transferred to him, and to preclude
the notion that he intended, at all events and under all cir-
cumstances, to have it converted into money."
In a New Jersey case, Lembeck v. Kelly, 63 N. J. Eq. 408,
">1 Atl. 794, there is this observation: "It is urged that the
ision of L898 is confined in its scope, by its title — 'An acl
r< pecting conveyances' — to that class of written instruments
known in legal Language as 'conveyances,' and that assign-
ments of leases of Land arc not included therein. Hut a
pen. al of the acl will show Unit this construction, if adopted,
Estate of Spreckels. 337
is most destructive in its consequences. Granting, for argu-
ment's sake, however, that it must be confined to conveyances
of land, I think that an instrument which 'transfers' an in-
terest in land 'conveys' such interest, and that it matters
not how small in quantity and how short in time of duration
that interest may be."
In Whalon v. North Platte Canal Co., 11 Wyo. 317, 71 Pac.
995, it was declared that "No prescribed form of words is
essential to convey real estate ; but the instrument must con-
tain sufficient words to show an intention to convey.
"In one of the instruments the operative words used are,
transfer, sell, release. In the others, 'transfer, sell, assign and
set over.' These words are sufficient in the case of each in-
strument to constitute a conveyance. They show an intention
to sell and transfer. The w r ords 'transfer' and 'sell' are
employed in each instrument. We think it clear that the in-
struments are sufficient and operative to convey the interest
and title of the grantors to the water right described."
In a Colorado case the court observed that the word "con-
vey," or "assign," or "transfer" might be sufficient to
operate a grant. Any one of these words showing intention
to convey would be sufficient : Leadville v. Coronado Min. Co.,
29 Colo. 34, 67 Pac. 289.
In Utah the supreme court declared that "Contracts of sale,
before being such, must contain mutual obligations of full
payment and absolute conveyance. Consequently the only
inquiry is as to the meaning of the word 'transfer' in this
lease. The word 'transfer' may mean either a conveyance of
title or merely a delivery of possession ; and, if the construc-
tion of a written contract is questioned, we must look to the
document itself, to the entire transaction and the surrounding
circumstances, to ascertain the true intent of the parties.
"We think that, considering all the circumstances of this
case and the document itself, the word 'transfer' was used iD
its ordinary sense as applicable to real property. When used
in that connection, the word 'transfer,' unless otherwise re-
strained or limited, is either synonymous with the word 'sale,'
or it imports something more than or subsequent to sale ; sell-
ing being but one mode of transferring property. Property
may be voluntarily transferred from one person to another by
Prob. Dec, Vol. V— 22
338 Coffey's Probate Decisions, Vol. 5.
or gift, or it may be voluntarily transferred by operation
of law. In this case we are of the opinion that the reasonable
construction to be placed upon the word 'transfer' is that of
a transfer of title rather than a mere transfer of possession":
Ober v. Schenck, 23 Utah, 619, 65 Pac. 1073.
In Oregon in the case of Lambert v. Smith, 9 Or. 193, the
court said: ''What, then, is to be done with the word 'con-
vey, ' and is it the equivalent of grant ? In a conveyance the
word 'convey' means to transfer the title of property: Bur-
rill's Dictionary. And in Edelman v. Yeakel, 27 Pa. 27,
Judge Black says: 'The word "convey" means to transfer
title from one person to another.' This is giving the same
legal effect to the word 'convey' as 'grant' which has 'be-
come a generic term, applicable to the transfer of all classes
of real property.'
"In New York the operative word of conveyance is 'grant';
but Chancellor Kent says: 'As other modes of conveyance
operate equally as grants, any words showing the intention
of the parties would be sufficient,' and in the note it is said
that the word 'convey,' or the word 'transfer,' would prob-
ably be sufficient; that is, as we understand, would have the
force and effect of 'grant.' "
Chaplin on Express Trusts says: "In construing both deeds
and wills and all instruments creating, transferring, assigning
or surrendering, or authorizing the creation, transfer, assign-
ment or surrender of any estate or interest in lands, the
intent, as gathered from the entire instrument, controls.
"A transfer by covenant to stand seised to uses, which
method of conveying the legal estate will be hereafter ex-
plained, required a deed for the raising of a use or trust."
Reeves on Real Property uses this language in sections 311,
318 : "And it seems to be safe to assert, though upon no direct
authority, that a writing was necessary to the declaration of
a trust in incorporeal hereditaments, because the creation and
transfer of legal estates in them must be by deed or grant."
Throughout his book he uses the word "transfer" in the
same way.
So it should sncm from all these citations of codes and cases
and text-books that the word "transfer," equally with the
Estate of Spreckels.
339
word " convey,' ' is of equivalent signification and effect to
"grant."
THE FAIR CASE PARALLEL.
In the Fair case a trust to convey was held to be void. The
language of that will was "in trust to transfer and convey."
In the argument of the case under consideration, the peti-
tioners drew a parallel of the alternative provisions in these
two cases, as follows:
FAIR CASE.
(132 Cal. 526, 84 Am. St. Eep. 70,
60 Pac. 442, 64 Pae. 1000.)
In case either of my daugh-
ters die leaving no children
or descendants, the one-fourth
part of
SAID TRUST PROPERTY
AND ESTATE HEREIN
DIRECTED TO BE TRANS-
FERRED AND CONVEYED
to her children or descend-
ants
SHALL BE TRANS-
FERRED AND CON-
VEYED TO the children or
descendants of my other
daughter and if there be
none
THE SAME SHALL
BE TRANSFERRED AND
CONVEYED to my brothers
and sisters, etc.
SPRECKELS CASE.
If my said son Claus A.
Spreckels shall not be living
at the time of my death or
surviving me be not living at
the time of my wife's death,
then
ALL THE LEGACIES AND
DEVISES
GIVEN to him BY THIS
WILL
SHALL GO TO
his issue, to him in lawful
wedlock born, share and share
alike and
THE SAME SHALL
BE AND BECOME THEIRS
ABSOLUTELY AND FOR-
EVER.
It is argued from the fact that these words "transfer"
and "convey" or "shall be transferred and conveyed" were
the only words that were found in that will by which title
could have passed, that it could not be passed in any other
way, and that that distinction was important in the mind of
the court as decisive of that case; and since in this will there
is no trust to "convey," the word not being used, as seen
340 Coffey's Probate Decisions, Vol. 5.
above, nor any other word of identical import, therefore, there
is no direction, nor even an implication, that the trustees are
to "convey" or give title. Further the petitioners contend,
in commenting on the Fair case, that there is not a single
word in the Spreckels will, with respect to the duties of the
trustees that, properly construed, can be said to require that
the title should be given by the trustees to the persons who
are to take the title on the expiration of the prior trust; the
only words, it is asserted, that can be seized upon as imply-
ing this are the words "to divide" and the directions to "as-
sign, transfer, set over, and deliver," in clause (b) and these
words have no such just implication; they cannot be fairly
construed as demanding that the title pass only through the
trustees, but may be interpreted as words of direct devise.
Again, in the Fair case, attention is called to the language
found on page 529 (132 Cal., 84 Am. St. Rep. 70, 60 Pac.
442, 64 Pac. 1000), where the court said that the case
would have been different if there had been an independent
devise followed by a direction to the trustees to convey to
the devisees, in which case the words of devise would have
created an estate ajad the conveyance would have been un-
necessary, except, perhaps, as convenient and additional evi-
dence of title; and, further, the court said that, of course,
the precise technical word "devise" is not necessary; any
other word or language expressive of the same action or de-
sign would be sufficient, but in the Fair will there was no
such language, it was barren of any words of direct devise,
for not even by a slip of the pen was Fair betrayed into using
any language that might be construed into a direct devise,
as, for instance, that the property should "go to," or "be-
long to," or "vest in" the classes of persons enumerated. It
is contended that words of the same legal effect as those men-
tioned by the court in the Fair case, as words that would
have been sufficient words of devise, in fact some of the very
words Unit are so specified, are found in the will here under
construction. It is further contended that there are clear
words of dired devise used in the Spreckels will, and that the
Ian of the third paragraph is plain, and if we take the
second and construe it with the third paragraph, we find an
undoubted devise to the two sons.
Estate of Spreckels. 341
dominant authorities in california.
The case of How v. Waldron, 98 Mass. 281, is cited as hold-
ing in effect that a direction to divide property among children
worked a direct devise to them; but we are called back to
California to find the dominant authorities upon this point.
In the Estate of Dunphy, 147 Cal. 95, 81 Pac. 315, the court
held that there was no trust to convey under the language of
the will. The testator in that case devised his estate to his wife
and daughter in trust ; to convert his personal property in the
county of Monterey, and also all of his real property and per-
sonal property in the state of Nevada, into cash, and to
divide the net income into five equal parts; one-fifth of the
net income thereof was to be paid quarterly to his wife,
during her life, and upon her death one-fifth of the principal
of his said estate shall be transferred and distributed as she
may by will direct; if she shall make no direction, the one-
fifth was to go to his heirs at law ; similarly as to his daughter,
Jennie C. Dunphy, he directed that one-fifth of the income
should be paid to her during her lifetime annually, and upon
her death one-fifth of his estate was to be distributed as by
her directed, and if she shall make no such direction it shall
go to her children, and if she shall leave no child it shall go
to'testator's heirs at law; and in the case of James C. Dun-
phy, he directed that one-fifth of the income should go to him
for life, and that upon his death one-fifth of the principal of
his estate shall be paid as he shall by will direct ; if he shall
have made no such direction then such one-fifth shall go to
his children, and if he shall leave no child then it shall go
to testator's heirs at law. In regard to his other daughter,
Mary Flood, there was no question about there being a direct
devise; it was simply a direction to pay the income to her
during life, and after her death it was to go to her children,
but if she left no children then to testator's heirs. Similarly
as to the granddaughter, Viola Percy, there was no question
there of any trust ; it was simply a direct devise.
It was held that the will should not be held to create an
unwarranted trust to convey unless its language clearly
showed that there is an intent to create such a trust and it
could not be reasonably construed otherwise. But the court
held that the only trust created by Mr. Dunphy was a trust
342 Coffey's Probate Decisions, Vol. 5.
during the lives of his wife and children, and that after the
death of the wife and these children, in each case, the trust
purpose ceased, and the property was left in the hands of the
trustees and, of course, it had to be distributed to get it out of
their hands.
In the Estate of Heywood, 148 Cal. 184, 82 Pac. .755, the
testator created a trust for the life of his wife from whom he
was separated by articles of agreement, and he was bound
under this agreement to pay her a certain sum of money dur-
ing her life, and he created a trust during her life to provide
for such payment, providing in the will that at the end of the
trust estate, that is, upon the death of the widow, one-half
of his property vested absolutely in his daughter; and upon
the same event, also, the other half vested absolutely in his
brothers and sisters and their issue.
The language is: "Upon the death of my wife one-half of
the residue of my estate shall vest absolutely in my said
daughter and the remaining one-half shall vest absolutely, as
follows, to wit" — enumerating the persons in whom it is to
vest.
The controversy in the Heywood case arose over the clause
I* the paragraph of his will, called clause 4, in which he said :
''In case my said daughter should die before my said wife,
without any child or children, then the whole of said residue
shall be divided among my said brothers and sisters, and niece
ind nephew, in the proportions named in the last preceding
subdivision."
It was claimed that those words created a trust to convey,
in line with the Estate of Fair, and therefore that the whole
will must fall.
It was held that the trust was not invalid, and that the
principle of the decision in the Fair case had no application,
rase the provision of the Heywood will was radically dif-
ferenl from the provisions construed in the Fair will. It
did not provide that trustees should transfer or convey the
1 rust property to Ihe relatives designated ;is the only method
whereby title to the trust property should pass to thorn should
specified contingency occur; in fact, no active duty was
• upon them in this regard; they were not mentioned in the
Estate of Spreckels. 313
section; there was no express direction to them to "divide"
the trust property; nor was there any direction in any other
provision of the will that they should make any transfer, con-
veyance, or division of the trust estate among the beneficiaries,
or that they should do anything at all so as to vest title to
it in them. In this respect the Hey wood case should seem to
be the antithesis of the Spreckels will, in which, according to
his words, the testator contemplated that the division should
take place through the trust.
In commenting on the Estate of Dunphy, Mr. Justice Lori-
gan said: "In that case a trust clause in the will provided
that upon the death of one of the beneficiaries one-fifth of the
principal of the estate 'shall be transferred and distributed'
as such beneficiary might by will direct. There was no ex-
press direction to the trustees to transfer or distribute. It
was insisted that the language used meant that the title to
such fifth could only pass by the trustee's conveyance, and
that it was a trust to convey and void under the decision in
the Fair case. This court held otherwise, and declared the
provision valid, holding that the use of these words evidenced
no intention that the trustees should execute a conveyance,
and that the provision contained no direction at all to the
trustees to transfer, distribute or convey, nor did it interfere
with the apparent intention of the testator that the disposi-
tion of the trust estate authorized by the beneficiary to be
made should operate as a direct devise. As the direction in
the Dunphy case that a portion of the trust estate 'shall be
transferred and distributed' did not amount to a trust to
convey, but operated as a direct devise, certainly the provision
in the present trust that the 'whole of said residue shall be
divided' did not create a trust directing the trustees to divide
or transfer the title by conveyance on partition, but operated
as a direct devise in favor of beneficiaries. "We are satis-
fied that it was the intention of the testator, in using the lan-
guage in subdivision 4 that the 'whole of said residue shall
be divided, ' to indicate the persons and proportions in which,
in the event of his daughter's death, the share otherwise
absolutely devised to her should vest, and that no trust of
any kind was imposed upon the trustees under said pro-
vision."
344 Coffey's Probate Decisions, Vol. 5.
It is contended by demurrants that this decision is author-
ity for two propositions in the case at bar: (1) that a trust
to divide is an invalid trust under section 857 of the Civil
Code:
"Express trusts may be created for any of the following
purposes :
"One. To sell real property, and apply or dispose of the
proceeds in accordance with the instrument creating the trust.
"Two. To mortgage or lease real property for the benefit
of annuitants or other legatees, or for the purpose of satisfy-
ing any charge thereon.
"Three. To receive the rents and profits of real property,
and pay them to or apply them to the use of any person,
whether ascertained at the time of the creation of the trust or
not, for himself or for his family, during the life of such per-
son, or for any shorter term, subject to the rules of title two
of this part; or,
"Four. To receive the rents and profits of real property,
and to accumulate the same for the purposes and within the
limits prescribed by the same title";
— and (2) that where there is a substantial legacy, or a legacy
giving a substitutional devise, that it is the same as the original
devise, which goes to the substituted devisee.
In the Estate of Heberle, 153 Cal. 275, 95 Pac. 41, decided
March 24, 1908, which is much counted on by both sides, the
trust was conceded to be void under the decision in the Fair
case, but by reason of words of direct devise in other parts of
the will the property passed to the beneficiaries.
The only question in that case was whether or not from
a construction of the will intestacy resulted. It was an ap-
peal from an order sustaining demurrers to the petition of
In irs at law of a portion of the estate, it being the contention
of petitioners that as to this portion he died intestate. The
court said :
"The deceased by his will, after directing the payment
of his debts and funeral expenses, devised and bequeathed
\n trusti es all the rest and residue of his estate upon specified
iru ts. By the seventh paragraph of his will he directed
certain ri ;il property upon Spring street in the city of L-os
Estate of Spreckels. 315
Angeles, called for convenience the Spring street property,
of the estimated value of sixty-five thousand dollars, to be
held by the trustees for the term of five years 'and then the
same by said trustees to be conveyed to the children of my
deceased brother Martin Heberle, late of Miamisburg, Mont-
gomery county, state of Ohio, share and share alike.' It is
conceded by all parties to this litigation that this trust is
void : Estate of Walkerly, 108 Cal. 628, 49 Am. St. Rep. 97,
41 Pac. 772 ; Estate of Cavarly, 119 Cal. 408, 51 Pac. 629 ;
Estate of Fair, 132 Cal. 523, 84 Am. St. Rep. 70, 60 Pac. 442,
6 Pac. 1000; Estate of Dixon, 143 Cal. 511, 77 Pac. 412;
Estate of Sanford, 136 Cal. 97, 68 Pac. 494. At the time of
his death, the testator still owned the Spring street property.
The question to be answered is what disposition is to be made
of it. Admittedly, if intestacy results as to this property,
the petitioners are entitled to share in it.
"Reading the whole will, we find, next, this clause: 'In
case I should dispose of said property, then it is my will that
my trustees pay over to the said children or grandchildren
of my said deceased brother the amount received by me for
said property. It being my will that the said children and
grandchildren of my deceased brother shall receive from my
estate the said real estate or its value.' By the fourteenth
paragraph the testator empowers the trustees to convert real
estate into money by sale. The seventeenth paragraph, how-
ever, is a limitation of this general power, and reads as fol-
lows: 'That the power to sell my real estate, as set forth in
the fourteenth subdivision, shall not affect my said Spring
street property, which is not to be sold, but is to be kept and
distributed to the children of my said deceased brother,
Martin.' The trust created by paragraph 7 being void in its
creation, no estate as to the Spring street property passed to
the trustees. If in the will there are no other apt words dis-
posing of the property upon the failure of this trust, intestacy
as to it must be the result. The trial court found those words
in the seventeenth subdivision of the will above quoted, and
in view of the fact that a construction which favors testacy
is always preferred to one resulting in intestacy (Dunphy's
Estate, 147 Cal. 96, 81 Pac. 315), it may not be said that the
346 Coffey's Probate Decisions, Vol. 5.
interpretation is not a permissible one. The seventeenth
paragraph contains a direction for the 'distribution' of the
Spring street property to the children and grandchildren.
While it may be argued that the word has reference to dis-
tribution by the trustees under the trust, yet it is not a word
aptly used for such purpose, while it is apt in its application
to a direct devise. It is equally open to the construction,
therefore, that the distribution to the children is to be at the
hands of the court. As is said in Estate of Dunphy, 147 Cal.
96, 81 Pac. 315, the word 'distributed' is not a technical word
in conveyancing and is not usually found in deeds. 'If it
have any legal technical meaning it has such meaning with
reference to decrees of distribution in probate courts.' It ap-
pears that while the testator designed, in case he died possessed
of the Spring street property, that that property should be
held for five years, yet that if the Spring street property had
been sold, they were to receive in money the amount obtained
from such sale directly, and not through the medium of
trustees. The paramount idea in the testator's mind, there-
fore, was not that the property should descend to his
beneficiaries through a trust, but that, with or without a trust,
they should with certainty receive property to that value from
his estate. Under the wording of this instrument, therefore,
the trial court was correct in holding that its conclusion that
the trust was void did not, in contemplation of the other
language employed in the will, so defeat the testator's intent
as to render imperative a finding of intestacy."
I have deemed it proper, at the expense of space, to pre-
sent this opinion in full, on account of the importance at-
tached to its expressions. Petitioners ask particular atten-
tion 1o this case because of the reason that it goes far from
the Pair case. The language that the court below and that
the appellate tribunal found as sufficient to operate as words
of devise there was "the power to sell my real estate as set
forth in the fourteenth subdivision shall not affect my Spring
street property, which is not to be sold, but which is to be
kepi and distributed to the children of my deceased brother,
Martin."
Estate of Spreckels. 347
the paramount idea op testator.
The court said that the paramount idea in the mind of
the testator was not that the property should descend to his
beneficiaries through a trust, but that with or without a trust
the designated persons should with certainty receive property
to that value from his estate. Is not that the paramount
idea? Is it not obvious from every part of the will at bar,
from the words of exclusion as well as from the words of in-
clusion, that Claus A. and Rudolph Spreckels are to receive
this estate, and that the other sons are to receive nothing?
Petitioners submit that this Estate of Heberle is alone
ample justification for their position, and that it is sufficient
to justify this court in sustaining their contention without
any other case at all ; and they call attention to the fact that
it was there necessary to disregard a part of the language,
namely, that which under the rule in the Fair case became
ineffective — the trust to convey — and also to carry out the
intent of the testator the court took other language designed
for another purpose and construed it as language of devise.
This language, which petitioners say perplexes demurrants,
is where the testator said : " In case I should dispose of said
property, then it is my will that my trustees pay over to the
said children or grandchildren of my said deceased brother
the amount received by me for said property. It being my
will that the said children and grandchildren of my de-
ceased brother shall receive from my estate the said real
estate or its value. ' '
This was not the provision upon which the court below
based its decision sustaining the limitation in favor of Mar-
tin Heberle 's children. The opinion proceeds: "By the
fourteenth paragraph the testator empowers the trustees to
convert real estate into money by sale. The seventeenth para-
graph, however, is a limitation of this general power, and
reads as follows: 'That the power to sell my real estate, as
set forth in the fourteenth subdivision, shall not affect m3 r
said Spring street property, which is not to be sold, but is to
be kept and distributed to the children of my said deceased
brother, Martin.' "
But it is difficult to accept the conclusion of petitioners that
this Heberle case is sufficient to support their proposition.
348 Coffey's Probate Decisions, Vol. 5.
The important question in the cited case was the sufficiency
of a disposition as obnoxious to the doctrine of trusts to con-
vey and the court held that while the dispositive provision
was void under the Fair case it might be maintained as a
direct devise. "The seventeenth paragraph," said the court,
"contains a direction for the distribution of the Spring street
property to the children and grandchildren. While it may be
argued that the word has reference to distribution by the
trustees under the trust, yet it is not a word aptly used for
such purpose, while it is apt in its application to a direct de-
vise. It is equally open to the construction, therefore, that
the distribution to the children is to be at the hands of the
court. As said in Estate of Dunphy, 147 Cal. 96, 81 Pac. 315,
the word 'distributed' is not a technical word in conveyanc-
ing and is not usually found in deeds. If it have any legal
technical meaning it has such meaning with reference to de-
crees of distribution in probate courts. ' '
"It appears that," says the court, "while the testator de-
signed in case he died possessed of the Spring street property,
that that property should be held for five years, yet that if
the Spring street property had been sold they were to receive
in money the amount obtained from such sale directly, and
NOT THROUGH THE MEDIUM OF TRUSTEES."
These last words point the distinction between the two
cases.
Petitioners say that the purpose of the testator was to create
a trust for the widow and daughter, and after that a devise
for the two sons, who take as primary devisees, their title
vesting immediately upon the death of testator; it is repeated
that it is clear upon principle and authority that testator
designed a devise. We have here two valid trusts (a) (c),
one for the widow, one for the daughter, remainder a devise
to sons. It w;is not upon a partition that the title was to vest,
but upon the death of the testator to take effect in the events
indicated in paragraph second of will; and absolute vesting
of title in the two sons upon the death of testator, postpone-
ment of possession only.
MEANT BY TERMS "DEVISE" AND "LEGACY."
Now, we rocnr to lcfjal terminology. We have considered
the meaning of the word "transfer" and its synonymity with
Estate of Spreckels. 319
the word "convey," the former a most comprehensive term
applying to real and personal property, the latter only to real
property, but, of course, included in the former, and the word
"assign," peculiar to personal property, meaning according to
the Century Dictionary "to set apart; to make over by de-
livery or appropriation; apportion, or allot."
We come, then, in natural sequence, to ascertain what is
meant by the terms "devise" and "legacy" and their cog-
nates.
The word "transfer" in this will is not isolated; it is as-
sociated with other words of legacy and devise. Testator
"gives devises, and bequeaths" unto his trustees, all his
estate, real, personal, and mixed, to have and to hold the same
in trust, to be assigned, ' ' transferred, ' ' set over, and delivered
to his son, and so on. The word, therefore, seems to be woven
in the verbal texture of legacy and devise.
The original section of the Civil Code of California differed
from its present text, and from its prototype, the statute of
New York, in an important particular, which was sought to
be corrected by amendment in 1905. the law as it now stands.
"When any estate is devised or bequeathed to any child,
or other relation of the testator, and the devisee or legatee
dies before the testator, leaving lineal descendants, such de-
scendants take the estate so given by the will, in the same
manner as the devisee or legatee would have done had he
survived the testator": Civ. Code, sec. 1310.
In the Estate of Ross, 140 Cal. 289, 73 Pac. 976, the court
said that in the whole chapter on wills the legislature has with
extreme care and technical accuracy, used the terms "devise"
and "legacy" in their well-recognized common-law sense and
distinction ; the one as a testamentary disposition of land, the
other a like disposition of personalty. And, to accentuate the
proposition that the term "devise" is technically used, it is
provided by section 1343 of the same code that: "If a devisee
or legatee dies during the lifetime of a testator, the testa-
mentary disposition to him fails, unless an intention appears
to substitute some other in his place, except as provided in
section 1310." It is obvious that the terms "devisee" and
"legatee" are used in this section with lecal accuracy and
distinctiveness, and with the same accuracy the exception is
350 Coffey's Probate Decisions, Vol. 5.
limited in section 1310 to a devise. In that case the supreme
court dealt with section 1310 as it stood prior to the amend-
ment of 1905, and it is with reference to its then terms that
the court remarked that under section 1343 all devises or
legacies lapse, if the devisee or legatee dies before the testator,
except as protected and secured by section 1310 to the lineal
descendants of any child, or other relation of the testator.
This protection, however, by the explicit language of section
1310, is extended solely to devises ; legacies are not within its
terms. The use of these terms, "devise" and " devisee,' *
"legacy" and "legatee," all through this chapter, with legal
exactness, exhibits the intention of the legislature to employ
them precisely as defined at common law. Where clear,
direct and explicit terms are used by the legislature, which
have had a definite meaning since the beginning of common-
law terminology, there can be no room for discussion as to
their meaning. Time has marked them too distinctly not to
be clearly recognized and understood. This decision was de-
livered in 1903; the controversy arose prior to the amend-
ment, the lower court having decided the matter in May,
1901 : 3 Cof . Pro. Dec. 500, 511.
The legislature subsequently made the distinction manifest
by amendment sharply defining the difference between "de-
vise" and "legacy," the former being confined exclusively
to real and the latter to personal property.
It may be assumed that the testator, charged with a knowl-
edge of the law, had this distinction in mind when he made
his will, and that the lawyer whom he employed to mold in
legal form the communicated idea of his benefaction ex-
pressed his concreted conception in the terms of this instru-
ment, when he used the verbs "devise" and "bequeath" and
the substantives "devise" and "legacy." It should seem
quite clear that when the testator used these expressions he
meant that the trustees were to take realty as well as person-
alty. As the petitioners say, every word in the will must
be given full meaning.
In Thompson v. Hart, 58 App. Div. 439, 69 N. Y. Supp.
223, the court said, commenting on Delafield v. Barlow, 107
N. V. 535, 14 N. E. 498: "In that case as here there was a
devise both as to real and personal property, the directions to
Estate of Spreckels. 351
divide into shares. And in this respect the cases are quite
parallel; in other respects there is a radical difference. In
the Delafield case the language of the gift is, 'I give and be-
queath,' and the court held that this language was strictly
applicable to a bequest of personal property. In the pres-
ent case the language of the will is, 'I give, devise and
bequeath, ' language which excludes the idea that personal prop-
erty only was to pass, and which is peculiarly appropriate to
the character of the property which in fact passed to the
trustees."
It may be proper here to insert the syllabus of the Dela-
field case: "S. died, leaving his wife and four daughters
surviving hirn. By his will he directed his executors to divide
one-half of his residuary estate, real and personal, into four
equal parts, which he gave to said executors in trust to re-
ceive and apply the rents and profits to the use of the
testator's wife during her life; after her death the rents and
profits of said parts to the use of each of his said children
during life, and upon her death 'to pay over,' transfer and
deliver the principal of said one-fourth part, together with
any arrears of income to her heirs, or to such person or uses
as said daughter 'may by her will appoint.' The other half
he directed his executors also to divide into four parts and
to give one to each of the testator's said children. The will
also provided that any moneys advanced to either of said
children and charged in the testator's books of account against
her share in the estate, should be deducted 'from the sum be-
queathed to such daughter in this section.' The will also
empowered the executors, 'for the purpose of carrying into
effect' the will and trusts therein created, to sell 'in their
discretion' any and all of the real estate. In an action for
partition of certain real estate of an interest in which the
testator died seised, and which was included in said residu-
ary clause, held, that an infant child of one of the daughters
was not a necessary or proper party defendant under the
Code of Civil Procedure (section 1538) ; that she never could
take the real estate, and had no title thereto, or interest
therein as realty, but that the whole title vested in the ex-
ecutors and trustees; that, construing all the provisions of
the will together, the direction to sell the real estate was im-
352 Coffey's Probate Decisions, Vol. 5.
itive and there was, therefore, an equitable conversion
thereof into personalty."
This is said by both sides to be a case precisely in point.
In Scholle v. Scholle, 113 N. Y. 272, 21 N. E. 84, the court
said: "It is observable that the language of the testator is
very carefully employed to rebut the theory of a conversion.
In each of five articles when giving income he merely uses the
phrase 'I give and bequeath,' appropriate to a mere gift of
personal property; but when he creates the remainders the
language changes uniformly and in every instance becomes 'I
give, devise and bequeath.' The change of phraseology seems
not to be accidental, but intentional, and to indicate the tes-
tator's expectation that land as such would pass in the re-
mainders and their gift required the added word devise."
It is not necessary to transcribe passages from these and
other cited cases to explain repetitively that there was not
here a careless or accidental use of terms, but an intelligent
purpose to execute testator's intention: Matter of Coolidge,
85 App. Div. 304, 83 N. Y. Supp. 299.
While the petitioners pray as trustees for a distribution
to them as such, in argument they contend that the clause
under which they claim is not a valid trust, but a devise, and
that the court must sustain the valid and reject the void.
This is an anomaly in argument. "The purposes of the tes-
tator as outlined in clause (b) were not intended by him to
be accomplished through the medium of a trust or by the
intervention of trustees." "No man can be a trustee for
himself": Greene v. Greene, 125 N. Y. 506, 21 Am. St. Rep.
743, 26 N. E. 739. But we have seen that in California this
may be the case: Nellis v. Rickard, 133 Cal. 617, 85 Am. St.
Rep. 227, 66 Pac. 32.
THE TRUSTEES TAKE THE WnOLE TITLE, LEGAL AND EQUITABLE.
It is conceded thai clause (b) is bad as a trust, and we
are asked to separate it from its context and make it good as
a devise. We are told about the mechanism, the geography,
the physiognomy and the mathematics of this instrument, and
even the classics are not neglected in discussion, but we come
finally to the point at which we began, What were the trust
purposes under this will V They arc clearly recited in that
Estate of Spreckels. 353
document. All his property is given, devised and bequeathed
unto his trustees, for the trust purposes indicated (a), (b),
(c) in second paragraph. In this paragraph there are five
trust purposes, (1) to pay income to widow, (2) to divide the
property into three equal parts after her death, (3) to assign,
transfer, set over and deliver one of these parts to Rudolph,
when the same shall be and become his absolutely and for-
ever, (4) a similar trust purpose as to Claus A, and (5) to
hold the remaining one-third part during the life of Mrs.
Emma Ferris, in trust, to pay over to her the net annual in-
come during her life, and at her death to pay over the prin-
cipal of said third part to her children or grandchildren, as
the case may be, when the same shall become theirs abso-
lutely and forever. If she should leave no child, children or
grandchildren her surviving, then the trustee is to pay over
the principal of said equal third part to said Claus A. Spreck-
els and to Rudolph Spreckels, and the same shall become theirs
absolutely and forever.
Purposes 2, 3 and 4 are included in clause (b) of paragraph
"Second" of the will.
It is admitted that the first trust, for the life of the widow,
is valid, and does not exhaust the fee; but it is asserted by
demurrants that the second and third trusts, the trust to
divide the property into three equal parts, and the trust to
transfer these parts, require that the full fee shall be vested
in the trustees; therefore, they take the full fee as trustees.
Now, if this be so, and if it be not contrary to the statutes,
it is a perfect trust. It must be considered as a whole; as
an entirety. We sometimes speak of "real trusts" and "per-
sonal trusts," but these phrases are not accurately descrip-
tive. The trust operates upon a collective entity, composed
of real and personal estates, but for convenience the old and
familiar terms continue to be used.
That the fee was cast in the trustees, by the terms of the
trust, is apparent from the provisions of the will. A trust
to sell confers a fee, for if they had no fee they could con-
vey none: Estate of Fair, 132 Cal. 549, 84 Am. St. Rep. 70,
60 Pac. 442, 64 Pac. 1000. The sixth paragraph of the will
at bar authorizes and empowers the trustees in their discretion
to sell and dispose of any and all of testator's property, real
Prob. Dec, Vol. V— 23
35-1 Coffey's Probate Decisions, Vol. 5.
or personal, and to give all deeds, bills of sale, and other
muniments of title expedient or necessary to purchasers. In
such cases the trustees take the whole title legal and equitable.
"Except as hereinafter otherwise provided, every express
trust in real property, valid as such in its creation, vests the
whole estate in the trustees, subject only to the execution of
the trust. The beneficiaries take no estate or interest in the
property, but may enforce the performance of the trust":
Civ. Code, sec. 863.
The title being in the trustees, the process of taking it
from them must be by transfer to the beneficiaries; and that
process is provided by the will. It is idle to say that this
is absurd, to transfer from one person to himself; for it is
for the court to follow the law, and the will is the law; be-
sides, as has been shown, we must treat the trustees and
beneficiaries as distinct legal entities, notwithstanding their
individual identity.
The only way in which these petitioners come into pos-
session of their parts is through the transfer from the trustees
to them upon the death of the widow of testator. It is then
only, after the division into three equal parts, that they take
title "absolutely and forever." So, also, in the case of Mrs.
Ferris, trustees are to pay the income to her during her life
and at her death they are to pay over the principal of the
remaining equal third part to her children or grandchildren,
as the case may be, and in default of children or grand-
children they are to pay over the principal to Claus A. and
Rudolph.
In the case of the death of either of the sons named, then
all the legacies and devises "given to him by this will shall
go to his issue. " Neither is named ;is a direct devisee or
itee; erii-h is mentioned only as a truster, and his share
to him testamentarily only after the death of the widoM
and through the medium of trustees. No title whatever vests
in these beneficiaries except as a result of the transfer from
the tn, The fee remains in the trustees as such to feed
the limitation to vest at the distributive epoch; it continues
to abide in them until the event occurs upon which it is con-
tingent. This is substantially the language of Savage v. Burn-
Estate of Spreckels. 355
ham, 17 N. Y. 566, in unison with the Estate of Steele, 124
Cal. 539, 57 Pac. 564.
In the Estate of Dixon, 143 Cal. 513, 77 Pac. 412, the
testator provided that the trustees should "pay over and
transfer" to the beneficiary the trust estate with the income
and the accumulations. The word "convey" does not occur
in the instrument. The court said that the testatrix clearly
intended the title to remain in the trustees until the termina-
tion of the trust, for she directs the trustees, upon the happen-
ing of the event, to pay over and transfer the trust estate to
him. In the will at bar the testator provides that upon the
division of the estate into three equal parts, one of the parts
shall be assigned to Claus A. and one to Rudolph, and the
same shall be and become his absolutely and forever. Until
that transfer, there is no complete investiture of title. The
Dixon case is authority for the proposition that until the
transfer the fee abides and vests and persists in the trustees.
It has been decided that under the California statute the
beneficiary takes no estate except by conveyance from the
trustee. The Estate of Fair is cited for the doctrine that
where a testator, as in clause (b) of this will, instead of
making a direct devise, makes a devise through the medium
of trustees, who are to transfer, and marks the time for the
vesting of the property after the division, and in consequence
of the transfer, that such a dispositive attempt upon the
part of a trustee is futile, that the trust is void.
THE FAIR CASE A RULE OF PROPERTY.
Whichever way we turn we seem to be confronted with
the Fair case. It has become a rule of property in this state
and it is dangerous to. depart from its doctrine, and it has not
been departed from hitherto by our appellate court. In
Keating v. Smith, 154 Cal. 186, 97 Pac. 300, there were pro-
visions similar to the Fair will, and the court said that the
original testamentary trust was invalid, but the estate had
been distributed and the time for appeal had elapsed, and,
therefore, no remedy remained, for the decree could not be
disturbed, although the trust itself was void, and this was
conceded. In that case the supreme court said the will made
no direct devise to anyone but the trustees and gave to the
356 Coffey's Probate Decisions, Vol. 5.
beneficiaries only the right to receive new estates created by
transfer from the trustee; but the decree of distribution
was, for the reason stated, final. Upon a like point in Hofsas
v. Cummings, 141 Cal. 527, 528, 75 Pac. 110, the court said
that there appeared to have been designedly created a trust
to convey, whereby the title to the property should vest, and
could only vest, in Lewis upon the execution of the deed from
the trustees; and, further, that in the trusts over there were
apt words granting and conveying title by the act of the
trustees under the instrument itself, while in the case of Lewis
the only title which he was to receive was from the trustee,
and none whatever from the act of the trustor.
It is asserted by petitioners that the Estate of Fair differed
radically from the case at bar; in fact, that it was precisely
opposite to the situation here. In that case, it is argued,
there were words in the will, in addition to the direction to
convey, which showed affirmatively that the testator desired
the estates of the remaindermen to be taken under a convey-
ance from the trustees. There was the direction that the
trustees should transfer and convey; here the proposition is
that the property shall be divided, shall be and become abso-
lutely and forever the property of these two sons; in the
other part of the will, showing where the same property is,
in a certain event, to go to other persons, it is to go to them.
Certainly, it is claimed, the testator could not have intended
that there must have been a trust to partition or convey in
1he case of his sons, but a direct devise in the case of his
grandchildren. Now, what did the supreme court say in this
connection in that case? It declared that the principle which
the testator has clearly expressed in his will must be followed,
and that the instrument cannot be construed as intending a
direct devise where the clearly expressed intention is other-
wise, and that there cannot be a devise without operative
words sufficient to create it, as illustrated in Estate of Young,
L23 Cal. 337, 55 Pac. 1011. In the same case the court said
L32 Cal. 548, 84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000)
that, it' th<- words "transfer and convey T ' were eliminated
from the will, then the beneficiaries would "not take the
lie at all, for 1 1n- heilS of Fair would be entitled to inherit
it. 1 1 cure 1 he interest of the beneficiaries in the estate can
Estate of Spreckels. 357
only come to them through the words 'transfer and convey';
and if the beneficiaries are to take the fee and take it only
through the medium of these words, the trustees must have
the fee vested in them, in order that they may transfer and
convey it."
WHAT THE FAIR CASE DECIDED.
These words may be adapted to the case at bar. According
to this authority the trust as to real property is invalid.
Many of the questions there discussed may not be essential
here, but some are appropriately considered. In one par-
ticular the justices seemed to be agreed that a trust to convey
in this state would be invalid. At common law such trusts
were recognized, but our code provisions were designed to
abolish and have abolished them. Therefore the Fair trust
was declared void. In that case (132 Cal. 527, 84 Am. St.
Rep. 70, 60 Pac. 442, 64 Pac. 1000), the court said that our
provisions are clearly taken from those of New York on the
same subject. Section 857 of the California Civil Code is
practically the same as section 55 of the Revised Statutes, the
main difference being that subdivision 1 of that section merely
provides for an express trust "to sell lands for the benefit of
creditors," and it was held in that state, both before and
after the adoption of the California codes, that there could
be no express trusts as to land, except those enumerated. In
Hawley v. James, 16 Wend. 147, Bronson, J., said "there
can no longer be any express trusts, except such as are
enumerated and defined by the statute." In Gilman v. Red-
dington, 24 N. Y. 15, the court say: "Trusts to convey land
to a beneficiary are not enumerated in the statutes of uses
and trusts"; and in Hotchkiss v. Elting, 36 Barb. 44, the
court say: "The trust therein mentioned is simply to convey
the premises, subject to the reservation, to such person or
persons as the wife of the plaintiff should by writing appoint.
This is not one of the trusts authorized by law, and is there-
fore absolutely void." The foregoing are merely a few of
many other New York cases to the same point. The New
York statutes contain provisions for "powers in trust" which
are not authorized by our code.
Our supreme court further quotes from Bronson, J., in
Hawley v. James, in which he said: " 'The rule that the
358 Coffey's Probate Decisions, Vol. 5.
intent of the testator is to govern in the construction of wills
has no necessary connection with the inquiry whether the
devise or bequest is consistent with the rules of law. When
we have ascertained what particular disposition the testator
intended to make of his estate, then, and not before, the
question arises whether the will is valid. If the disposition
a< tually made is not inconsistent with the rules of law, the
will is good, and must be carried into effect, whatever the
tutor may have thought about the legality of the act; and,
on the other hand, if the disposition actually made is contrary
to law, whether it happened through design or the want of
accurate information, the will is worthless, and we have no
'•hoice but to declare it void.' The Fair will is clearly within
these declared principles; for here the intent was clear, that
the whole estate was to go to the trustees, to be by them con-
veyed, and there are no operative words to create an estate
in remainder. Of course, if an estate be created subject to
■veral trusts, one of which is void, and the latter is legally
-sparable from the others, the estate vests, unaffected by the
void trust; but if the creation of the estate depends upon
the execution of a void trust, then it can never come into
existence": 132 Cal. 532, 84 Am. St. Rep. 70, 60 Pac. 442,
04 Pac. 1000.
In construing the language of the will it was said in the
same case it must be kept in mind that the court is not al-
lowed to force the construction of a sentence, or even a word,
in order that a particular result may be reached; and this is
lie rule, even though such construction be absolutely neces-
ary to save the document from complete condemnation.
In the Walkerly case it is said: "Where the language of
I he provisions of the will is plain and unambiguous, the
courts are not permitted to wrest it from its natural import
order to save it from condemnation. It may be said of all
ills that the testator's intent is to make a valid disposition
of his property. But a court is not therefore authorized to
modify or vary the plain language of the testator, and thus
create a new and valid will for him, even if it were certain
thai tin' tf-st ;itor would have adopted the interpretation of
l he court, had he known his own attempt was invalid."
Estate of Spreckels. 359
Chief Justice Beatty, upon the rehearing of the Fair case,
modified his original opinion and corrected his conclusion
that the intent of the testator might be given effect as a direct
devise. Wherever a testator attempts to convey his estate by
a method clearly unlawful, the attempt must fail ; in such case
the intent cannot be effectuated. The chief justice became
satisfied, on reflection, that the lawful intention of the testator
could not be carried into effect by disregarding the unlawful
means chosen by him for its accomplishment. For other rea-
sons, however, he adhered to his original view that the trust
created by Fair was valid. Mr. Justice Harrison, in the course
of his dissenting opinion, said:
"It is sometimes provided in the instrument creating the
trust, that after the execution of the trust specifically pre-
scribed the trustees shall DIVIDE the trust property, and
upon such DIVISION convey it to certain beneficiaries then
to be ascertained. In such cases the trust is executory, and
the beneficiaries take no interest in the property, except by
virtue of the conveyance. The trustees are clothed with a
discretionary pow T er, which can be exercised only by themselves,
or under the supervision of a court of chancery: Gilman
v. Reddington, 24 N. Y. 9 ; Manice v. Manice, 43 N. Y. 303 ;
Cooke v. Piatt, 98 N. Y. 35; DeKay v. Irving, 5 Denio, 646
So, too, when the conveyance is to be made in accordance with
the appointment of a designated beneficiary or a third person,
the trustees have an active duty to perform for the purpose
of completing their trust, and the author of the trust is not
his own conveyancer. In the present case, however, the trus-
tees are not directed or authorized to divide the trust property,
and any attempted division by them would be in excess of their
power and nugatory"; 132 Cal. 565, 84 Am. St. Rep. 70, 60
Pac. 442, 64 Pac. 1000.
It is not necessary to extract more from the opinion in
this regard, as it seems to reflect the unanimous sentiment of
the supreme court. In the Estate of Sanford, 136 Cal. 100,
68 Pac. 494, the court followed the principle of the Fair case.
In the Estate of Pichoir, 139 Cal. 682, 73 Pac. 606, the will
contained a direction that the trustees should, upon the death
of the sister of the testator, convey and pay over such of his
360 Coffey's Probate Decisions, Vol. 5.
estate as should then be remaining in their hands unto "William
Mboser, or if he should not be then alive then to his wife, or
if she should not be then alive then to and among his children
who should then be living, to be divided among them share
and share alike. The supreme court said that the will clearly
contained a trust to convey all the real property of the estate
to the Moosers. It had no words of devise to them. It con-
tained neither the word "devise," nor any equivalent. If it
were not for the words "trust" and "convey," there would be
no operative words in the instrument by which the title to
the real property would in any way pass to them ; and the
manner provided for the vesting of title in them being un-
lawful and forbidden, the real property was not disposed of
by the will and vested at the death of the testator in the heir
at law. The case, in this respect, the court could not distin-
guish from the Estate of Fair.
THE WORDS "DIVIDE" AND "DIVISION" INTERPRETED.
In Hawley v. James, cited above, the direction was to the
trustees "to divide" iato so many "equal parts," and there-
upon to "convey" the same to the beneficiaries. Bronson, J.,
considered this an obligation upon trustees to divide the estate
into so many equal parts and called it a "partition," and de-
clared it invalid.
In De Kay v. Irving, 5 Denio, 646, the direction by the
testator was that at a certain time his estate should be
"divided," and provisions were made for details "until the
said division of my estate shall be made." "Divide" and
"division" are the words. In his opinion, Beardsley, J., said
that the direction in the will to make partition of the same
'lid not require the title to be vested in the executors, as it
might be done by the exercise of a naked power, and created
no suspense of the power of alienation. In effect, this was to
the trust to divide was void under the statute of New
York, and the judge understood by the terms "divide" and
"division" a testamentary direction to make a "partition,"
using these words as synonyms. In commenting upon this
in Manice v. Manice, Rapallo, J., uses these words inter-
changeably; repeatedly in the same sense: 43 N. Y. 365, 369.
Estate op Spreckels. 361
In Cooke v. Piatt, 98 N. Y. 35, testator gave, devised and
bequeathed to his executors all of his real and personal estate
upon trust to divide and distribute his said estate, or its pro-
ceeds after the payment of his debts, to and among his four
children, naming them, in equal proportions, the children of
any deceased child to take its parent's share. The court said
that it was of opinion that no trust estate in the testator's
land was created in the executors of the will; that the main
purpose of the testator was to give his estate remaining after
payment of his debts equally to his four children. He im-
posed upon his executors the duty of making the division,
and this was the declared purpose of the trust. If there was
nothing further in the will there could be no question. The
statute does not authorize the creation of a trust for the
partition of lands.
Henderson v. Henderson, 113 N. Y. 1, 20 N. E. 814, cites
and supports this case, saying that the declared purpose in
that case was to divide the estate among the children through
the executor, conferring a discretionary power to sell, and it
was. therefore, ineffectual to create a valid trust, though it
might be upheld as a power.
THE PICHOIR CASE DISTINGUISHED.
If the trust as to real property becomes void, what becomes
of the personalty? The rules applicable to trusts of real
property are generally applied to trusts of personal property.
Petitioners contend that the valid trusts may be separated
from the void, and that the doctrine of severability may be
invoked in this case, and that it is the proper and salutary
course for the court to follow in construing the will ; that the
contrary contention is novel and involves a strained construc-
tion foreign to the intent of testator, and that it is the judicial
duty to disregard it as tending to a defeat of his plain pur-
pose; and that the peculiar consequences flowing from the
strange and strained interpretation of demurrants forbid that
their claim of inseverability should be seriously regarded, and
cite the Estate of Pichoir, 139 Cal. 682, 73 Pac. 606, wherein a
trust was held severed as to real and personal property.
In the Pichoir case it is pointed out by demurrants that the
trustees had a mere naked trust, simply to convey the realty
3G2 Coffey's Probate Decisions, Vol. 5.
and personalty in undivided shares, as in the Estate of Fair,
but in the case at bar the trustees are clothed with a dis-
cretionary duty to "divide" the estate among the two sons
and the daughter. In this respect the cases may be distin-
guished. The main trust in the Pichoir will was as to per-
sonal property, the realty was comparatively insignificant. It
would seem that the trustees had no discretion in the premises.
In the case at bar it is claimed to be different, and it is argued
by demurrants that it is clear that the testator intended that
the trustees should retain the property in its original form,
as appears from the fifth paragraph in which he authorizes
and empowers his trustees to invest and reinvest the trust
funds in any securities approved by his wife and by them
during her lifetime, in case she survive him, and after her
death in any securities which the trustees may deem best,
whether the same are or are not investments to which ex-
ecutors and trustees are by law limited in making investments,
and to change or vary investments from time to time as they
may deem best; and the trustees were authorized to hold and
continue, in their discretion, any security in which any of the
property might be found invested at the time of his death,
his intent being that they should be absolved and discharged
from the absolute legal duty of converting his estate into
money, and that they should not be liable for any shrinkage
in value by reason of the exercise of the discretion reposed in
them.
I N'SEVER ABILITY OF THE SPRECKELS TRUST.
Now, it is claimed that we have but one trust here, a trust
involving an inseparable fund, composed of interblended
really and personalty, and that the testator contemplated
nothing else in the administration of his estate, and that the
t rusl as to personal property is void because to sustain it would
be to mutilate and maim his testamentary scheme. "It is a
familiar principle," said the supreme court, in Carpenter v.
I ik, 132 Cal. 625, 84 Am. St. Rep. 118, 64 Pac. 997, "that
if several trusts are so inextricably interwoven, so mutually
interdependent, that the destruction of one mutilates and
maims in essential particulars the trust scheme, the whole
must fall." In the Estate of Fair, 132 Cal. 541, 84 Am. St.
Estate of Spreckels. 363
Rep. 70, 60 Pac. 442, 64 Pac. 1000, the court say: "The
appellants invoke the aid of the principle, that where several
trusts are created by will, which are independent of each
other, and each complete in itself, some of which are lawful
and others unlawful, and which may be separated from each
other, the illegal trust may be cut off and the legal one per-
mitted to stand. This rule is of frequent application in the
construction of wills, but it can only be applied in aid and
assistance of the manifest intent of the testator, and never
where it would lead to a result contrary to the purposes of
the will, or "work injustice among the beneficiaries, or defeat
the testator's scheme for the disposal of his property."
In the second decision of the same case (136 Cal. 81, 68 Pac.
306) it is said that the general rule is well settled that where
"there are valid and invalid clauses in a will, the question
whether the valid clauses can stand depends upon whether
or not the invalid ones are so interwoven with them that they
cannot be eliminated without interfering with and changing
the main scheme of the testator." Again it was said, quot-
ing from an authority: "Where a will is good in part and
bad in part, the part otherwise valid is void if it works such
a distribution of the estate as, from the whole testament taken
together, was evidently never the design of the testator."
In this will there is no distinction between the realty and
the personalty ; they are united in one inseparable trust. The
trustees are given full control over both kinds of property.
They could use the personal property to pa}* the expenses of
maintaining and improving the real property. They are ex-
pressly given power "in their discretion" to sell any and all
property, real or personal, and to invest and reinvest, as in
the Fair case: 136 Cal. 82, 68 Pac. 306. "It is, therefore,
obvious, indeed too clear for reasonable controversy on the
point, that the realty and personalty are so inseparably inter-
woven in the trust scheme that the destruction of the fabric
as to the realty inevitably destroys it as to the personalty."
It must be considered as a unit. To undertake to treat it as
a trust of personalty and realty separably would be destruc-
tive of the purpose of the testator, the essential feature of
which was, division into three parts, his entire estate, real
and personal, to be divided into three equal parts- that is his
364 Coffey's Probate Decisions, Vol. 5.
language; there is no escape from it. "We have no right to
assume that he meant more or less than what his words mean.
We are to ascertain his real meaning from the words that he
lias used. Giving effect to all his language, it is manifest that
he designed to impose upon the trustees the duty of dividing
all of his estate in the manner and on contingency specified.
They are given the power and duty of making the division
and are charged with an active trust. There is a clear intent
to dispose of all the testator's property, including both real
and personal, and both species are to go to the beneficiaries
merely through the hands and by the action of the trustees.
For this purpose there was a special trust and confidence
reposed in them by testator. In his mind the entire estate
was blended and the court should not attempt a separation.
He did not so direct. The language of Palms v. Palms, 68
Mich. 365, 36 N. W. 419, is in point: "Had the will directed
the real estate to be converted into personalty it would in
equity have been so treated and the tenth clause would in that
event have been valid. But the testator did not so direct. It
authorizes investments to be made as the trustees shall deem
for the best interests of the estate, and to lease, repair and
improve the property confided to their management, and con-
templates that certain property may remain real estate.
Neither do I think it proper that the real estate and personal
property devised to the trustees as it came to their hands
should be kept separate in order to apply to each the rules
controlling their disposition. The testator has placed it all
in one trust and subjected it to the same disposition. He
has made no distinction, and I think it clear that we can
make none for him. If, therefore, the trust as to any portion
of the will must fail because unauthorized, it must fail as to
both classes of property": Fisher v. Butz, 224 111. 379, 115
Am. St. Rep. 160, 79 N. E. 659; Story v. Palmer, 46 N. J.
Bq. 1, 18 Atl. 363; Savage v. Burnham, 17 N. Y. 570.
In the Estate of Xaglee, 52 Pa. 160, Mr. Justice Strong said,
in answer to the objection urged that the personal estate was
not liable to the division under the terms of the will and
thai the intention was that the real estate should also remain
undivided, that he dissented entirely from this view, for, in
his opinion, both realty and personalty were given to the
Estate of Spreckels. 365
trustees. The two kinds of property were blended, and formed
constituents of one fund, and as one estate they were made
subject to partition on a specified contingency. The testator's
intention was as clear as language could make it, that division
of both should be made in that contingency. The realty and
personalty were united in the same trust to be held together,
for the subject of the will was one, though composed of
different parts. It is the estate given to the trustees to be
treated as one fund and contemplated by the testator to be
distributed in one partition. Justice Strong uses intercon-
vertibly, "division" and "partition."
It is said by petitioners that to maintain the integrity of
these trusts is a strange doctrine and would lead to peculiar
consequences violative of the testamentary intention; but it
should seem from the foregoing that it is not of novel im-
pression, but is supported by weighty authority, at home and
abroad. As to the consequences, we must meet the will face
to face, and take it at its face value. The consequences of
inseparability may be such that with the fall of the realty
trust, the personalty trust must go down — that the provisions
of the will are futile, and the estate real and personal is in-
testate. If the vicious proposition may not be separated from
the valid, both fall together, and the defeat of the entire
trust is encompassed by this vitiation. We are concerned not
with its consequences, but with its commands. We must obey
its orders, its express mandate, be the result what it may.
We cannot reconstruct this will in an attempt to construe it.
The trustees are vested with an important function, if the
trust be valid, and this tribunal may not enlarge nor diminish
their power; it may, perhaps, regulate its exercise; it cannot
add to nor subtract; it must pursue the testamentary pro-
visions to the point of final distribution when the will shall be
merged in the decree.
THE FUNCTION OF THE TRUSTEES.
Now, what are the functions of these trustees, conceived to
be so important, and of the substance of the trust? These
functions are described very clearly in the instrument. The
whole fee is vested in the trustees to carry out certain pur-
poses declared in paragraph second, as already recited. That
366 Coffey's Probate Decisions, Vol. 5.
fee remains vested in them until transferred pursuant to the
trust. There can be no transfer until the division shall be
le. This is of the substance of the trust. It is a trust in
terms to divide and transfer to the sons. In respect to the
daughter, it is to pay her the net annual income from the
principal of the remaining one-third part and upon her death
to pay over the principal to her children then living, or to
their issue if no children be then surviving. There is here no
gift except in certain contingencies. The element of time is
now attached to the testamentary disposition. Upon the death
of Emma •without child or grandchild surviving, the trustees
shall pay over the principal of that third with accumulations
to the two sons, and, in that contingenc} T , it shall become
theirs absolutely and forever. There is no present gift; it is
a direction to the trustees to do something at a future time
dependent upon conditions then to be ascertained. A future
interest is contingent, when the person in whom, or the event
upon which, it is limited to take effect remains uncertain :
Civ. Code, sec. 863. Where the only gift is found in a direc-
tion to divide at a future time, the gift is future and not
immediate, contingent and not vested. It is the uncertainty
as to the precise persons who are ultimately to take that
introduces the element of contingency: Townshend v. From-
mer, 125 N. Y. 446, 26 N. E. 805. Unquestionably the interest
of the unborn children is contingent, because it is uncertain
whether they will ever come into existence: Estate of Wash-
burn (Cal. App.), 106 Pac. 415. The persons who come within
this category cannot be ascertained prior to the date when
the division or distribution is to be made : In re Baer, 147 N.
Y. 353, 41 N. E. 702. Meanwhile there cannot be a vesting;
consequently the gift is contingent. In such a case, says the
authority just cited, the gift is contingent upon survivorship.
Liable to be devested by the death before that time of a per-
imptively entitled to share in the distribution. It
hould in quite clear, then, upon the authorities, that this
is a contingent Limitation; that the gift is future, uot im-
mediate; that the persons who would finally be entitled to the
re r could not be determined until the death of the
daughter, bi use until that event it could not be known
whether any of those coining within the category would be
Estate of Spreckels. 367
living at that time, and unless living the gift would entirely
fail.
AN UNDUE SUSPENSION OF ALIENATION.
If these propositions be accepted, that the trust is insever-
able, and that the fee vests in the trustees until the contingency
contemplated happens, then there is an undue suspension of
the power of alienation, and the trust is, on that account,
void. It contravenes the code provisions prohibiting the sus-
pension of the power of alienation: Civ. Code, sees. 715, 716,
749 ; Estate of Walkerly, 108 Cal. 647, 49 Am. St. Rep. 97, 41
Pac. 772. In the Walkerly case the court said that such a
trust cannot be terminated during the period fixed for the
existence, even by the consent and joint act of all the trustees
and beneficiaries. An attempt by the* trustees to convey be-
fore that time would contravene the trust and be a void act :
Civ. Code, sec. 870. "So even by this method of progression
our path leads to that barrier of perpetuity which cannot be
surmounted": 108 Cal. 649, 49 Am. St. Rep. 97, 41 Pac. 772.
What is a perpetuity 1 It is, according to the Estate of Steele,
124 Cal. 537, 57 Pac. 564, any limitation or condition which
may (not which will or must) take away or suspend the
absolute power of alienation for a period beyond the con-
tinuance of lives in being. The absolute power of alienation
is equivalent to the power of conveying an absolute fee: In
re Walkerly, 108 Cal. 647, 49 Am. St. Rep. 97, 41 Pac. 772.
This is but a paraphrase of section 716, supra, which declares
"void in its creation" every future interest which, "by any
possibility, may suspend," etc. The statute does not permit
us to wait and see whether events may not so transpire that
in fact no perpetuity results, but if under the terms of the
deed or will creating the trust, when properly construed, the
instrument "by any possibility may suspend" the absolute
power of alienation beyond the continuance of lives in being,
the instrument, whether a deed or will, is void, and no trust
is created nor any estate vested in the trustee. If the trust
is valid, being an express trust, the beneficiaries take no
estate or interest in the property, but may enforce the per-
formance of the trust: Civ. Code, see. 863; Bouvier's Diction-
ary; Estate of Hinckley, 58 Cal. 457.
368 Coffey's Probate Decisions, Vol. 5.
This language is substantially a repetition of the Atlantic
authorities which hold, in interpreting the statute, that to
render such future estates valid, they must be so limited that
in every possible contingency they will absolutely terminate
at such period, or such estate will be held void: Schettler v.
Smith, 41 N. Y. 328 ; In re Wilcox, 194 N. Y. 288, 87 N. E.
497.
THE RULES APPLY ALIKE TO REAL AND PERSONAL PROPERTY.
It does not matter whether it is a trust of real or of per-
sonal property — in this case it is both — the rules apply alike.
In Mills v. Husson, 140 N. Y. 105, 35 N. E. 422, the court
said that it has been uniformly held that the rules governing
estates or interests in lands, whether founded upon statutes or
upon general principles of law, should, as far as practicable,
be applied to estates of a like character in personal property.
The court further said that even if the provisions of the
statute were not sufficiently comprehensive absolutely to re-
quire, as a peremptory injunction of statute law, their applica-
tion in all their length and breadth, and in the same degree
to both classes of property, the argument to be derived from
the general similarity of legislative enactments, in regard to
both classes of property, from the similar if not equal mis-
chiefs to be remedied, and from the general policy of the law,
would authorize a court of equity in the exercise of its ac-
knowledged powers, to apply the same rule of construction to
both.
There is certainly "much force in the position that one
body of law should not declare a different rule for two kinds
of property, when there is nothing in the nature of either
kind of property, or in the nature and effect of the rule that
calls for it."
There is a manifest propriety, said the court in Cochrane
v. Schell, 140 N. Y. 534, 35 N. E. 971, in assimilating the
rules governing trusts and limitations of real and personal
property, and the tendency in this direction lias been very
marked in the decisions. This view seems to have been taken
in Toland v. Toland, 123 Cal. 144, 55 Pac. 681. In the
Walkerly case, 108 Cal. 627, it was pointed out that the essen-
tial tin se in California between trusts in real property
Estate of Spreckels. 369
known as express trusts, and those in personal property are:
1. The former can only be of the kinds permitted by the
statute, and no others (Civ. Code, sec. 857), while the latter
may be created generally for any purpose for which a contract
may be made (Civ. Code, sec. 2220) ; 2. The former must be
created and declared by writing (Civ. Code, sec. 852), while
the latter may rest upon parol : Civ. Code, sec. 2222. But to
all trusts, whether of real or personal property, the limita-
tion upon the suspension of the power of alienation expressed
in section 715 of the Civil Code directly applies. The section
is found in division 2, part 1, title 2, of the code where
the lawmakers are dealing, as expressly declared, with the
modifications of ownership and restraints upon alienation of
property in general.
That the same rules govern both kinds of property would
seem to be the deduction of our own supreme court in the
case just cited wherein it is remarked that section 771 of the
Civil Code demonstrates the applicability of the law to per-
sonal property. That section reads :
"The suspension of all power to alienate the subject of a
trust, other than a power to exchange it for other property to
be held upon the same trust, or to sell it and reinvest the
proceeds to be held upon the same trust, is a suspension of the
power of alienation, within the meaning of section seven
hundred and fifteen": Civ. Code, sec. 771.
"For if," says the supreme court, "it be only the sus-
pension of the power to alienate real property which is under
the ban, power to sell the realty would relieve the difficulty,
and yet it is by that section expressly declared that personal
property held after sale under the terms of the original trust
operates to suspend the power of alienation, under section
715 of the Civil Code. And finally, the applicability of sec-
tion 715 to trusts in personal property has often been recog-
nized, and never questioned : Estate of Hinckley, supra ;
Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50; Williams v.
Williams, 73 Cal. 99, 14 Pac. 391; Whitney v. Dodge, 105
Cal. 192, 38 Pac. 636."
So far we have dealt with the second paragraph of the
will and have arrived at the conclusion that it does not create
a valid trust. Indeed, this is conceded by petitioners, despite
Prob. Dec, Vol. V — 24
370 Coffey's Probate Decisions, Vol. 5.
their prayer for a distribution to them as trustees, but they
insist upon the severability of the trust as to real and per-
sonal property, and maintain that it is the duty of the court
to sever the trust if possible. But the authorities do not sus-
tain this contention. The same cases and text-hooks are
cited with confidence by both sides, but they do not seem to
support the position assumed by petitioners, as has been suffi-
ciently shown in this opinion. It is not a correct construc-
tion of this will to conclude from its terms, as argued by peti-
tioners, that there are but two trusts ; one trust for the benefit
of the widow and one for the benefit of the daughter; that
those are the only trusts here, and that the disposition of
the property upon the termination of those trusts is made
by way of devise and not by way of trust, and that the tes-
tator intended that the two sens should take title before any
division. This is a contradiction of the very words of the
will, which it is unnecessary to repeat.
Up to the time of the event indicated in clause (b) of
paragraph second the estate was to be held intact by the
trustees, to hold jointly for certain specified purposes. These
purposes need not be restated. In the third paragraph of
his will it is provided that if his son Clans A. be not living
at the time of the death of the testator or his widow, then
all the legacies and devises "given to him by this will"
shall go to his lawful issue, share and share alike, and the
same shall be and become theirs absolutely and forever. He
repeats literally the same provisions as to Rudolph. That
is all there is of the third paragraph. What is meant by its
terms? It is not an original gift. It is a short method of
stating what is already contained in paragraph second.
AY hen he speaks of what is "given to him by this will" it
plainly refers to the preceding paragraph. The issue therein
alluded to take by substitution the estate devised to the tru:
^ as it shall be divided by them according to the provisions
of paragraph second. The right of the trustees to take any-
thing individually is dependent upon their being alive at the
death of their mother, and there must he a precedent divi-
sion and segregation of the estate; their interests or equities
are purely contingent; the ultimate limitation shows that the
title must remain in the trustees; and the trust does not ter-
Estate of Spreckels. 371
minate with the life of the widow of the testator : Paget v.
Melcher, 156 N. Y. 399, 51 N. E. 24; Fargo v. Squiers, 151
N. Y. 250, 48 N. E. 509.
The trust does not cease, because the trustees are still
charged with duties that they may not neglect upon penalty
of removal. If they fail to perform their functions they are
liable to extrusion, and successors may be appointed to com-
plete the testamentary trust purpose. Until this work is fin-
ished, title remains in the trustees. Before that time it can-
not be known who are the beneficiaries; in the interim both
the legal and equitable estates are in the trustees, and the
vesting in the beneficiaries must await the expiration of the
prescribed period; whatever interests they may have must
remain in abeyance, and, it is possible, may never take effect ;
for the provisions of the will leave the persons who may ulti-
mately take possession quite uncertain : Fargo v. Squiers, 154
N. Y. 260, 48 N. E. 509.
NO DIRECT DEVISE TO INDIVIDUALS IN THIS WILL.
It cannot successfully be maintained, as this court under-
stands the authorities, that there is any direct devise to indi-
viduals in this will. "What is given by paragraph second con-
stitutes a clear and direct devise to the trustees as such and
cannot be reduced or modified by any subsequent provision
of a less certain and distinct character: Civ. Code, sec. 1322.
It is not in accord with this rule of construction to assume
that testator meant to qualify in the third what he so dis-
tinctly declared in the second paragraph. It is more eon-
sonant with reason to infer that the intention of the testator
in the third paragraph was that the beneficiaries were to hold
individually and separately after the transfer from the trus-
tees ; and that the original and substitutionary gifts were the
same ; that the trustees as such take jointly by the second but
individually by the third paragraph. Petitioners protest,
however, that there was no such intention in the mind of tes-
tator, and that he certainly intended and expressly declared
that the two sons here opposing this application should re-
ceive nothing for the reason that he had already given them a
large share of his estate ; but the Civil Code says, section 1322,
that a clear and distinct devise or bequest cannot be affected
372 Coffey's Probate Decisions, Vol. 5.
by any reasons assigned therefor, or by any other words not
equally clear and distinct, or by inference or argument from
other parts of the will, or by an inaccurate recital or refer-
ence to its contents in another part of the will. No matter
what reason testator assigned for the exclusion of the two
sons mentioned in paragraph fourth, it cannot affect the gen-
eral scheme of the will.
Paragraph third is dependent upon paragraph second. If
in this second paragraph an absolute estate has been con-
veyed, the authorities all agree that it will not be cut down
or limited by subsequent words, except such as indicate as
clear an intention therefor as was shown by the words creat-
ing the estate : Estate of Marti, 132 Cal. 672, 61 Pac. 964 ; 64
Pac. 1071. It follows that if the estate attempted to be
created by the second paragraph be void, there is nothing
whereby the subject matter of the third can be supported.
The thing must fall to the ground if once its support can be
severed from it: 2 Blackstone, 168. The third paragraph is
simply a succinct summation of conditions contingent upon
1he failure of precedent provisions.
The trustees have no power to deal with this property by
process of alienation until the death of the widow of testator,
and even then only to transfer to the beneficiaries in fulfill-
ment of the trust.
This necessarily involves a suspension of the power of
alienation, under the statute, and it has been held that the
mere possibility of such a suspension vitiates the trust: Haw-
ley v. James, 16 Wend. 62; Estate of Hendy, 118 Cal. 656, 50
Pac. 753.
In this latter case the supreme court said that it was
held in the "Walkerly case, as uniformly it has been held
under laws similar to our own, that the utmost limit of the
period of suspension of the power of limitation by any trust
or future estate must not by any possibility exceed existing
lives, or tin- trust or estate will be void in its creation. "No
absolute or certain term, however short, can be supported":
Crew v. Pratt, 119 Cal. 139, 51 Pac. 38.
It is claimed by petitioners that the mere creation of a
trust does not suspend alienation, and that the statute is
aimed at the creation of inalienable estates; and that there is
Estate of Spreckels. 373
no unlawful perpetuity unless the power of alienation is sus-
pended; and that the provisions of his will f 1 > not illegally
suspend that power. These contentions have been already
answered by the authorities cited. There is a trust term cre-
ated and during that term the trustees may not alienate. No
matter how brief or inappreciable the duration of the term,
it is sufficient to destroy the trust. The estate is tied up in
the trust, and until the widow of testator dies, there can be
no alienation. A bare possibility that the condition upon
which the estate is to vest may not happen within the pre-
scribed limits is all that is required to bring the devise within
the rule, and, therefore, it follows necessarily that it offends
the statute and is void: Johnson v. Preston, 226 111. 447,
80 N. E. 1001, 10 L. R. A., N. S., 564 j Underwood v. Curtis,
127 N. Y. 523, 28 N. E. 585.
AN INTEGRAL TRUST NOT SEVERED OR SEVERABLE.
It is assumed and asserted by the petitioners that the trust
for the benefit of the widow ceasing with her death there-
upon title vests in the two sons, but this assertion is not well
based, since it assumed two trusts in the will, whereas there
is but one and that a continuing trust, that is not severed or
severable, but persists until the happening of the contingent
event mentioned in the will. Petitioners say that if the sons
should die without issue, there is no substitution ; it is only in
case of leaving the issue in the contingency provided in the
will that there is a substitution ; but this is not clear ; rather,
it should seem, that the design of the testator was to place the
issue of the son or sons in the precise position the father
would have occupied if the latter had survived. The original
purpose or intent of the testator cannot be affected by any
accident to the object of his bounty ; the event cannot always
be foreseen as to time of happening, as in case of death, or
other circumstance, which renders the devise or bequest con-
tingent. As was said in Shipman v. Rollins, 98 N. Y. 323,
any other construction would impute to the testator a de-
sign to effect an object contrary to the plain meaning of the
language employed. "It should be borne in mind that the
fund out of which the legacies in question were to be paid
had no legal existence until the decease of the testator's
374 Coffey's Probate Decisions, Vol. 5.
widow." "Where there is no gift but by a direction to ex-
ecutors or trustees to pay or divide, and to do that at a
future time, the vesting in the beneficiary will not take place
until that time arrives: Warner v. Durant, 76 N. Y. 136.
Where the gift is found only in a direction to the trustees
to pay at a future time, time is deemed to be of the essence :
Clark v. Cammann, 160 N. Y. 325, 54 N. E. 709 ; Delafield v.
Shipman, 103 N. Y. 463, 9 N. E. 184.
We have said that this testamentary trust is a unit and
a continuing trust, and that it does not end with the death
of the widow; that on her demise the estate is to be divided
by the trustees into three equal parts, when one of said
parts is to be transferred by the trustees to Claus A., one
to Rudolph, and one to be held upon a further trust during
the life of Mrs. Ferris. This is an integral trust. It is
plain that it does not end with the death of the widow, but
continues indefinitely beyond, for after that event obliga-
tions of an onerous character are cast upon the trustees.
Prior to that time their duties may be light and perfunctory,
but after that they become difficult and delicate, requiring
great skill and business capacity of an unusual order. It is
apparent that the administration of this trust, consequent
upon the division and transfer, demands an uncommon de-
gree of ability, knowledge and experience, and that it can-
not be accomplished in a mechanical manner. It is a task
of magnitude and complexity, an estate of many millions in
value, of multiform character, the evolution of years of labor
and commercial genius, obviously necessitating extraordinary
'•are and prudence in its management and a reasonable time
to carry out testator's purpose, for the will does not execute
itself; it must be executed by the trustees. Testator was not
his own conveyancer. His purpose could not be executed
automatically, but through the activities of his nominated
trustees. It is an active, not a passive, trust. The trusters
have something to do, and to do it properly, they have to call
into i rcise high qualities of integrity and sagacity. Time
is needed for consideration, and sufficient time should he al-
them for deliberation as to the wise execution of the
trust. It is to be expected that trustees, especially where the
caUtc is large and diversified, will have temporary disagree-
Estate of Spreckels. 375
merits as to the methods of executing the trust. Reasonable
time must be given them to ascertain and consider all ele-
ments that should influence and control their judgment :
Fischer v. Butz, 224 111. 379, 115 Am. St. Rep. 160. 79 N. E.
659; Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363. While
the trustees are so engaged, necessarily the trust term
continues current. The possibility of issue is always present.
Either of the sons or the daughter may have a child or
grandchild born subsequent to the death of the testator or
during the life interest of the widow in the trust. Such issue
would be persons not in being at the date of the death of tes-
tator. It is possible, also, that the three named children of
testator might not survive the widow; but still the trust con-
tinues for the benefit of the afterborn children. Hence a pos-
sibility of division among persons not in being at the death
of testator, and. a failure thereby of the trust, according to
the authorities cited : Smith v. Edwards, 88 N. Y. 92.
It is impossible to ascertain in advance who will ultimately
take.
Until the happening of the future event it must remain
uncertain whether it be anyone in existence at testator's
death, and it might be a grandchild born twenty years later.
This is decisive of the question discussed: Andrews v. Rice,
53 Conn. 566, 5 Atl. 823 ; Hobson v. Hale, 95 N. Y. 615. It
cannot be said to be known who may be the issue, because the
possibility exists of the birth of a posthumous child, and while
that possibility continues the estate cannot be divided, and
must, therefore, be held by the trustees: In re Bergdoll's
Estate, 18 Pa. Co. Ct. Rep. 665. Such a trust necessarily
suspends the absolute power of alienation of the whole trust
estate.
No matter how well convinced the court may be of the
interior intention of the testator, it must say finally, as it
did at first, that the result must be determined by the lan-
guage in which he chose to clothe his purpose ; and if that lan-
guage be not consistent with legal rules, this court has no
choice but to declare it void as a testamentary trust under
our statutes and the decisions constituting the law of the case.
Demurrers sustained.
376 Coffey's Probate Decisions. Vol. 5.
Estate of EDWARD BARRETT, Deceased.
[No. 21,229; decided June 24, 1899.]
Administration — Whether Relatives Entitled to. — The relatives of a
decedent are entitled to administer only when they are entitled to
succeed to the personal estate or some part thereof.
Administrator — Right to Nominate. — In the case of a surviving hus-
band or wife the right to nominate an administrator under section
1365 of the Code of Civil Procedure is absolute, while in the case of
other persons contemplated by section 1379 the right is at most a
mere power to address a recommendation to the discretion of the
court.
Administrator — Relation Toward Heirs and Estate. — An administra-
tor sustains to the estate, the heirs and other persons interested th&
relation of trustee. He takes neither an estate, title nor interest in
the lands of the intestate, but a mere naked power to sell for spe-
cific purposes.
Administrator — Death of Nominor. — If the Daughter of a deceased
person gives a third person authority to apply for letters of admin-
istration in her behalf, the power so granted ceases and determines
at her death.
Descent — Vesting of Estate in Heir. — Immediately upon the Death
of an ancestor his estate, both real and personal, vests at once by the
single operation of law in the heir.
Descent — Law Purely Statutory. — The Descent of Estates of de-
ceased persons is purely a matter of statutory regulation.
Descent — Husband as Heir of Wife. — If a Widower Dies Intestate
leaving collateral relatives and one child, a daughter, and she, before
the estate is administered, dies intestate without issue, leaving neither
father, mother, brother, nor sister, the estate vests in her surviving
husband as her heir under subdivision 5 of section 1386 of the Civil
Code.
Administration — Husband as Relative of Wife. — A husband is of
i" to his wife and her "relative," so as to be entitled to admin-
ister on her estate under section 1365 of the Code of Civil Procedure.
Administration of Wife's Estate by Husband. — If a widower dies
intestate leaving collateral relatives and one child, a daughter, and
re the estate is administered, dies intestate, without issue,
hex a r.iving husband is entitled to administer her estate as against
the collateral relatives of her father.
Administration Follows Property. — The Right to Administer follows
the property.
Administration — Statutory Kinship. — The Law of Administration
contemplates a legal or statutory kinship as well as a kinship by
bio
Estate of Barrett. 377
Administrator — Competency Determined of What Time. — It is the
status of the petitioner at the time of the grant of administration
that determines his competency.
The Public Administrator must Always Give Way to the Relatives
who are entitled to succession, provided they are qualified to assume
the functions of administration.
The opinion in Estate of Barrett was destroyed in the great
fire of 1906.
AUTHORITY OF ONE OF SEVERAL EXECUTORS OR ADMINIS-
TRATORS.
Powers in General.
At Common Law. — Where two or more executors or administrators
are appointed, the common law esteems them as one person represent-
ing the decedent. Hence each has authority to perform any act, in
the ordinary course of administration, that all can do; the acts of
one are deemed the acts of all, and bind all and the estate accord-
ingly, inasmuch as corepresentatives have a joint and entire authority
over the assets of their decedent. Each has full authority in matters
of administrative detail: Willis v. Farley, 24 Cal. 490; Wilkerson v.
Wootten, 28 Ga. 56S; Scruggs v. Gibson, 40 Ga. 511; Alerding v. Alli-
son, 170 Ind. 252, 127 Am. St. Rep. 363, 83 N. E. 1006; Clark's Exrs. v.
Farrar, 3 Mart. (O. S.) 247; Bodley v. McKinney, 9 Smedes & M. (17
Miss.) 339; Bank of Port Gibson v. Baugh, 9 Smedes & M. (17 Miss.)
290; Mutual Life Ins. Co. v. Sturges, 33 N. J. Eq. 328; Murray v.
Blatchford, 1 Wend. 583, 19 Am. Dec. 537; In re Bradley, 25 Misc.
Rep. 261, 54 N. Y. Supp. 555; Arkenburgh v. Arkcnburgh, 27 Misc.
Rep. 760, 59 N. Y. Supp. 612; Chapman v. City Council of Charles-
ton, 30 S. C. 549, 9 S. E. 591, 3 L. R. A. 311; Boudereau v. Mont-
gomery, 4 Wash. C. C. 186, Fed. Cas. No. 1694; Edmonds v. Crenshaw,
14 Pet. 166, 10 L. ed. 402; Owen v. Owen, 1 At. 494, 26 Eng. Re-
print, 313; Ex parte Rigby, 19 Ves. Jr. 463, 2 Rose, 224, 34 Eng.
Reprint, 588. This is an exception of the rule that where a trust or
authority is delegated for mere private purposes, the concurrence of all
who are intrusted with the power is requisite to its due execution;
and distinguishes executors and administrators from technical trus-
tees, who in equity are regarded as forming one collective trustee, and
must therefore execute the duties of the office in their joint capacity:
De Haven v. Williams, 80 Pa. 480, 21 Am. Rep. 107; Fesmire v. Shan-
non, 143 Pa. 201, 23 Atl. 898.
"Coexecutors, however numerous, constitute an entity and are re-
garded in law as an individual person. Consequently the acts of any
one of them in respect to the administration of estates are deemed to
be the acts of all, for they have all a joint and entire authority over
the whole property. Tims one of two executors may assign a note
belonging to the estate of tha testator, or make sales and transfers
378 Coffey's Probate Decisions, Vol. 5.
of any personal property of the estate. He may release or pay a debt,
assent to a legacy, surrender a term or make an attornment without
the consent or sanction of the others. 'If a man appoints several ex-
ecutors, they are esteemed in law as but one person representing the
testator, and acts done by any one of them which relate to the de-
livery, gift, sale of release of the testator's goods are deemed the acts
of all.' It would seem to follow from this principle that they have
the power of joint and several agents of one principal and that any
act done or performed by one within the scope and authority of his
agency is a valid exercise of power and binds his associates": Barry
v. Lambert, 98 N. Y. 300, 50 Am. Kep. 677.
A modification of the general rule that the act of one executor is
the act of all would seem to arise where the will requires special acts
to be performed outside the common course of administration, and
confides their performance to several executors at their discretion, as
where power is conferred to raise money by mortgaging the property
of the estate (Port Gibson Bank v. Baugh, 9 Smedes & M. (Miss.)
290), or where power is given to make investments (Holcomb v. Hol-
comb's Exrs., 1 N. J. Eq. 281; Holcomb v. Coryell, 1 N. J. Eq. 476),
or where power is given to continue the mercantile business of the
testator for the benefit of his estate: Werborn v. Austin, 77 Ala. 381.
Under Statutes. — How far the common-law rule as to the authority
of one executor or administrator to act independently of his asso-
ciates has been modified, if at all, by statute, does not appear from
the adjudicated cases. It would seem, however, that from the terms
of some statutes the legislature has intended some modification. Sec-
tion 1355 of the California Code of Civil Procedure provides: "When
all the executors named are not appointed by the court, those ap-
pointed have the same authority to perform all acts and discharge
the trust, required by the will, as effectually for every purpose as if
all were appointed and should act together; where there are two
executors or administrators, the act of one alone shall be effectual, if
the other is absent from the state, or laboring under any legal dis-
ability from serving, or if he has given his coexecutor or coadminis-
trator authority in writing to act for both; and where there are more
than two executors or administrators, the act of a majority is valid."
Other states have statutes substantially the same as the California:
Ariz. Rev. Stals. 1642; Idaho Rev. Stats. 5346; Mont. Code Civ. Proc.
2406; X. 1). Rev. Code, 8016; Okl. Rev. Stats. 1527; S. D. Pro. Code,
75; I :ih Rev. St.-its. 3910; Wyo. Rev. Stats. 4633. But in Texas the
ute provides that "should there be more than one executor or ad-
ministrator of the same estate at the same time, the acts of one of
■ii as such executor or administrator shall be as valid as if all
acted jointly," except in the convcyanee of real estate: Armstrong v.
O'Brii ii. B3 Tex, 635, 19 S. W. 268.
Distinction Between Executors and Administrators. — Some authori-
have attempted to distinguish between executors and lolminis-
trator.s, conceding that one executor can bind his associates in matters
Estate of Barrett. 379
of administration, but denying that one administrator can bind his.
The reason advanced for this has been that an executor derives his
authority from the appointment of the testator, whereas an adminis-
trator derives his authority from the appointment of the law: Man-
grum's Admrs. v. Simms, 4 N. C. 160; Gordon v. Finlay, 10 N. C.
239; Jordan v. Spiers, 113 N. C. 344, 18 S. E. 327. This reason has
little force under the present law of administration whereby execu-
tors and administrators both substantially derive their authority from
the court of probate, the former being designated by the testator,
the latter by statute, and both must receive the approbation of the
court before they qualify. The distinction is not generally recog-
nized, and the more approved doctrine is that executors and adminis-
trators stand on the same footing in regard to their power to act
singly: Willis v. Farley, 24 Cal. 490; Beecher v. Buckingham, 18 Conn.
110, 44 Am. Dec. 5S0; Herald v. Harper, 8 Blaekf. (Ind.) 170; Doug-
lass v. Satterlee, 11 Johns. 16; Gage v. Johnson's Admr., 1 MeCord,
492; Jacomb v. Harwood, 2 Ves. 265, 28 Eng. Eeprint, 172. "Though
it was formerly held otherwise, it seems to be now the settled law
that joint administrators stand on the same footing, and are invested
with the same authority in respect to the administration of the es-
tate as coexecutors. Like them, they are regarded in law as one per-
son; and consequently the acts of one of them, in respect to the ad-
ministration, are deemed to be the acts of all, inasmuch as they have
a joint and entire authority over the whole property": Dean v. Duf-
field, 8 Tex. 235, 58 Am. Dec. 108.
Collection of Assets, Payment of Debts, and Other Administrative
Acts.
In General. — It is elementary that an executor or administrator is
entitled to the possession and control of the effects of his decedent
for purposes of administration until the estate is settled or delivered
over by order of the court to the heirs or legatees: Page v. Tucker,
54 Cal. 121; Freese v. Hibernia Sav. & Loan Soc, 139 Cal. 392, 73
Pac. 172; Butler v. Smith, 20 Or. 126, 25 Pac. 381; Noble v. Whitten,
38 Wash. 262, 80 Pac. 451. When there are two or more executors or
administrators, each is, as a rule, equally entitled to possession and
control: Abila v. Burnett, 33 Cal. 658; Gates v. Whetstone, 8 S. C.
244, 28 Am. Bep. 284; Edmonds v. Crenshaw, 39 U. S. (14 Pet.) 166,
10 L. ed. 402; and each is entitled to receive or collect any assets
belonging to the estate, and to collect any debts owing thereto and
discharge the debtors. They are not bound to act jointly in such mat-
ters: Bagby v. Hudson, 11 Ky. Law Bep. 581; Bryan's Exrs. v. Thomp-
son's Admrs. 7 J. J. Marsh. (30 Ky.) 586; Shaw v. Berry, 35 Me. 279,
58 Am. Dec. 702; Mitchell v. Williamson, 6 Md. 210; Duncan v. Davi-
son, 40 N. J. Eq. 535, 5 Atl. 93; Wood v. Brown, 34 N. Y. 337; Mur-
ray v. Blatchford, 1 Wend. 583, 19 Am. Dec. 537; Hoke's Exrs. v.
Fleming, 32 N. C. 263; Stone v. Union Sav. Bank, 13 K. I. 25; Gates
v. Whetstone, 8 S. C. 244, 28 Am. Bep. 284; Hyatt v. MeBurney, 18
3S0 Coffey's Probate Decisions, Vol. 5.
S. C. 199; Gage v. Johnson's Admr., 1 Mc*Cord, 492; Waring v. Pur-
cell, 1 Hill Eq. 193; Gleason v. Lillie, 1 Aik. (Vt.) 28; Mills v. Mills'
Exrs.. 28 Gratt. 442. Ordinarily one executor has no power to exclude
his associates from the possession of assets or to deprive them there-
of: Hall v. Carter, 8 Ga. 388. Yet where an executor jeopardizes the
funds of the estate by his mismanagement or insolvency, equity may
.iel him to restore the funds: Elmendorf v. Lansing, 4 Johns. Ch.
_ : or in a proper case appoint a receiver: Jenkins v. Jenkins, 1
Paige, 243. In order to obviate a resort to a court of equity in such
an emergency, the New York statute provides that where two or more
utors or administrators disagree as to the custody of the money
or property intrusted to their care, the surrogate may give directions
in the premises: Matter of Adler, 60 Hun, 4S1, 15 N. Y. Supp. 227;
Matter of Eisner, 6 App. Div. 563, 39 N. Y. Supp. 718; In re Hoag-
land, 51 N. Y. App. Div. 347, 64 N. Y. Supp. 920.
When a daughter and her father are appointed executrix and ex-
ecutor of her mother's will, she has the same right to receive, control
and disburse funds of the estate, including a legacy to her, as he has:
In re Eussell, 110 N. Y. Supp. 706, 126 App. Div. 607. But it has been
doubted that two executors may, against the protest of a third one,
check out of bank the succession funds: Allen v. Louisiana Nat. Bank,
50 La. Ann. 366, 23 South. 360.
Under a statute providing that an executor or administrator may
institute a proceeding to discover property, one of two administrators
may proceed alone: In re Ten Eyck, 3 Dem. Sur. (N. Y.) 1; and a
distress warrant in favor of one of two administrators may issue on
the affidavit of one of them: Scruggs v. Gibson, 40 Ga. 511. One ad-
ministrator may release a cause of action: Bryan's Exrs. v. Thomp-
son's Admrs., 30 Ky. (7 J. J. Marsh.) 586.
The title and right of access of each executor to the books and
papers of the decedent are equal. Either is entitled to inspect them
and to know for himself what they contain: Matter of Stein, 33 Misc.
Bep. 542, 68 N. Y. Supp. 933. It is probably competent, however, for
the several executors to determine which one of them shall have the
manual custody of the books and papers of the estate: Bronson v.
Bronson, 48 How. Pr. 481.
Confession of Judgments. — It seems that one of two or more execu-
tors cannot, without the knowledge or consent of the others who are
acting, confess a judgment which would bind the estate or the other
rs. The law gives to each executor the right to plead a
ratu plea to protect himself, and the other cannot deprive him of
ri^'lit, or the estate of his judgment and assistance. Although
toi may control and dispose of the chattels of the estate,
annot by lits sole act affect or bind his coexecutors, so as to make
t hf in J nsible, which he might do if he could admit
debts ox I judgi without their knowledge or consent: For-
nvth v. Ganson, 5 Wend. 558, 21 Am. Dec. 241; Hall v. Boyd, 6 Pa.
LG7; Heialex v. Kipe, IB . •'; Karl v. Black, 2 Pitts. Eep. 19.
Estate of Barrett. 381
Allowance of Claims. — Since the act of one executor or adminis-
trator, when there are two or more acting, is the act of all, the allow-
ance of a claim against the estate by one of the representatives binds
the estate: Willis v. Farley, 24 Cal. 490; Cross v. Long, G6 Kan. 293,
71 Pac. 524; and his rejection is likewise binding on the estate so
that an action may then be maintained to enforce the claim: Coburn
v. Harris, 53 Md. 367; Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108.
But when the will authorizes the executors (where the law permits
such a procedure) to administer without the intervention of the pro-
bate court, it has been decided that all must concur in allowing a
claim: McLane v. Belvin, 47 Tex. 493. And it has been held that
where the claim of one executor against the estate is disputed by his
coexecutor, the orphans' court cannot allow it: Middleton v. Middle-
ton, 35 N. J. Eq. 115.
Arbitration and Compromise. — One of several executors may enter
into an amicable action and submit to arbitration, and thereby bind
the estate: Lank v. Kinder, 4 Harr. (Del.) 457. And where two joint
executors have obtained a decree of the probate court, under the stat-
ute provided therefor, to compromise claims against the estate in a
certain manner, the settlement of the claims by either is valid and
binds the other: Gilman v. Healy, 55 Me. 120.
Execution of Contracts. — The general rule is, that an executor or
administrator cannot, except as expressly authorized by the will or
statute, create an obligation which will give a cause of action against
an estate. By virtue of his authority as personal representative, he
ordinarily cannot create such an obligation. But unless he stipulates
to the contrary, such a contract may bind himself personally: Ben-
wick v. Garland, 1 Cal. App. 237, 82 Pac. 89; Melone v. Buffino, 129
Cal. 514, 79 Am. St. Eep. 127, 62 Pac. 93; Wilson v. Mason, 158 111.
304, 49 Am. St. Bep. 162, 42 N. E. 134; First Nat. Bank v. Collins,
17 Mont. 433, 52 Am. St. Bep. 695, 43 Pac. 499. A coexecutor or
coadministrator stands in a no more favorable position in this respect
than a sole executor or administrator; and it has been held that one
administrator or executor cannot bind the estate or his associates by
an agreement to borrow money: Bryan v Stewart, 83 N. Y. 270; nor
by a note for an alleged claim against the estate: Boyer v. Marshall,
5 N. Y. St. Eep. 431; nor by an indorsement of a note: Bailey v.
Spofford, 14 Hun, 86.
Removal of Bar of Statute of Limitations. — If it is conceded that
a sole executor or administrator can, by an acknowledgment or new
promise, remove from the debt of the decedent the bar of the stat-
ute of limitations so as to bind the estate (a question upon which
the law varies in different jurisdictions), it would seem to follow that
one of several executors or administrators may do so: Hord's Admr.
v. Lee, 20 Ky. (4 T. B. Mon.) 36; Northcut v. Wilkinson, 12 B. Mon.
(Ky.) 408; Head's Exr. v. Manner's Admrs., 5 J. J. Marsh. 255; Shreve
v. Joyce, 3G 2s T . J. L. 44, 13 Am. Bep. 417; Eriggs v. Starke's Exrs., 2
382 Coffey's Probate Decisions, Vol. 5.
Mill (S. C.)j HI? 12 Am. Dec. 659. Some courts appear to limit this
rule to cases where the acknowledgment or new promise is made be-
fore the debt is barred: McCann v. Sloan, 25 Md. 575; Pole v. Sim-
mons, 49 Md. 14. The law is positive in some states that debts barred
before the death of the decedent cannot be revived by his representa-
tives: Etchas v. Orena, 127 Cal. 588, 60 Pac. 45; Barclay v. Blacking-
ton, 127 Cal. 189, 59 Pac. 834; Eeay v. Heazelton, 12S Cal. 335, 60
Pac. 977; Estate of Mouillerat, 14 Mont. 245, 36 Pac. 185; Jones v.
Powning, 25 Nev. 399, 60 Pac. 833; Clayton v. Dinwoodey, 33 Utah,
251, 93 Pac. 723; but the presentation and allowance of a claim
arrests the running of the statute, if it has not already run its course,
pending administration: Nally v. McDonald, 66 Cal. 530, 6 Pac. 390;
German Sav. etc. Soc. v. Hutchinson, 68 Cal. 52, 8 Pac. 627; Wise v.
Williams, 88 Cal. 30, 25 Pac. 1064; Estate of Tuohy, 33 Mont. 230,
83 Pac. 486; Frew v. Clark, 34 Wash. 561, 76 Pac. 85.
Said the supreme court of Massachusetts in Haskell v. Manson, 200
Mass. 599, 86 N. E. 937: "It is the rule in this commonwealth, in Eng-
land, and in most of the American states, that an executor or admin-
istrator is not bound to plead the general statute of limitations: Scott
v. Hancock, 13 Mass. 162; Baxter v. Penniman, 8 Mass. 133; Emerson
v. Thompson, 16 Mass. 429; Slattery v. Doyle, 180 Mass. 27, 61 N. E.
264; Field v. White, L. K. 29 Ch. Div. 358; Midgly v. Midgly, [1893]
3 Ch. 282; Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Eep. 417; Johnson
v. Beardslee, 15 Johns. (N. Y.) 3; Hord's Admr. v. Lee, 4 T. B. Mon.
Ky.) 36. So, too, it is a general doctrine that payment by one of
two or more just executors will have the same effect as payment by
all. Such is the usual effect of an authorized official act of an ex-
ecutor, so far as it relates to the property of the estate. But the rule
that an executor or administrator is not bound to plead the statute
of limitations is an exception to the general rule that it is his duty
to protect the property and interests of the estate under his charge.
It is universally agreed that it ought not to be extended. An execu-
tor or administrator is liable for a devastavit, if the estate suffers
through his failure to plead the statute of frauds: Field v. White, L.
R. 29 Ch. 358. An executor has no right to create a liability against
the estate by making a new and independent contract to pay an
alleged debt.
'The above-mentioned exception relative to the statute of limita
tiona is founded upon the theory that an acknowledgment and new
promise dors not create a new liability, but continues in force an old
one that otherwise might not be enforceable. There is some ground
for holding that, where a debt has been barred by the Btatute In fore
the death of the debtor, an administrator or executor should not be
permitted to revive it, by a partial payment, or a new promise or
acknowledgment of any kind. Although the distinction has not been
©flt.-ililished in this commonwealth between the effect of a payment and
acknowledgment by an executor or administrator of a debt which was
Estate of Barrett. 383
not barred at the time of his appointment, and the payment of a debt
that was barred in the lifetime of the debtor; and although theo-
retically the nature of such a new undertaking by the original debtor
may have been treated as the same in reference to a debt already
barred as in reference to a debt against which the time of limitation
has not expired, it is a significant fact that, in every case that we
have found in Massachusetts in which a payment or acknowledgment
by an executor or administrator was held to have extended the time,
the debt was not barred in the lifetime of the debtor. The executor
or administrator was simply continuing in force a debt which was col-
lectible from him after his appointment. In Pole v. Simmons, 49 Md.
14, a promise by an executor, after the statute had fully run in the
lifetime of the debtor, was treated as a new promise, made without
authority, and insufficient to create a liability: See, also, Peck v. Bots-
ford, 7 Conn. 172, 18 Am. Dec. 92; Cayuga County Bank v. Bennett,
5 Hill, 236. In many of the states of this country, either under stat-
utes or the decisions of the courts, a debt which was barred in the
lifetime of the debtor cannot be revived by his representative after
his death: McLaren v. McMartin, 36 N. Y. 88; Fritz v. Thomas, 1
Whart. (Pa.) 66, 29 Am. Dec. 39; Unknown Heirs of Langworthy v.
Baker, 23 111. 484; Patterson v. Cobb, 4 Fla. 481; Etchas v. Orena,
127 Cal. 588, 60 Pac. 45; Van Winkle v. Blackford, 33 W. Va. 573, 11
S. E. 26; Smith v. Pattie, 81 Va. 654; Bambriek v. Bambrick, 157 Mo.
423, 58 S. W. 8; O'Keefe v. Foster, 5 Wyo. 343, 40 Pac. 525; Jones v.
Powning, 25 Nev. 399, 60 Pac. 833; In re Mouillerat's Estate, 14 Mont.
245, 36 Pac. 185; Sector v. Conway, 20 Ark. 79; Moore v. Hardison,
10 Tex. 467.
"It has never been decided in Massachusetts that a payment made
by one of two executors against the objection of his eoexecutor, upon
a note which was barred by the statute in the lifetime of the testator,
would revive the note, nor has it been so decided in England. The
lords justices of the court of appeal, in a late case, preferred to leave
this subject open for future consideration: Midgly v. Midgly, [1893]
3 Ch. 282."
Sales, Conveyances, and Other Transfers of Property.
Sales of Personal Effects. — One of two or more executors or ad-
ministrators may, at the common law, by virtue of his authority over
the entire personal estate of the decedent, sell or assign the personal
assets of the estate as fully as though his associates joined in the
transfer. This rule includes assignments of choses in action: Beecher
v. Buckingham, 18 Conn. 110, 44 Am. Dec. 580; Dwight v. Newell, 15
111. 333; George v. Baker, 85 Mass. (3 Allen) 326; Wheeler v. Wheeler,
9 Cow. 34; Chapman v. Charleston, 30 S. C. 549, 9 S. E. 591, 3 L. E.
A. 311. In England one of two executors cannot make a transfer of
railway stock, registered in the names of both, under the companies
clause act: Barton v. North Staffordshire E. Co., 57 L. J. Ch. 800, 38
Ch. D. 458, 58 L. T. 549, 36 W. E. 754.
o$± Coffey's Probate Decisions, Vol. 5.
Indorsement or Transfer of Notes. — One of two executors or ad-
ministrators may transfer a note payable to the decedent, since they
are considered as holding one office, and the act of one, in settling
the estate, is equivalent to the act of all: Dwight v. Newell, 15 111.
333; is v. Blain, 6 J. J. Marsh. (29 Ky.) 446, 22 Am. Dec. 86;
Wheeler v. Wheeler, 9 Cow. 34; Geddes v. Simpson, 2 Bay (3. C),
533; Moseley v. Graydon, 4 Slrob. (S. C.) 7. A number of authori-
however, are to the effect that a note payable to two or more
executors or administrators, rather than to their decedent, cannot be
transferred by one of them only: Clark v. Gramling, 54 Ark. 525, 16
S. W. 475; Sanders v. Blain, 6 J. J. Maish. (29 Ky.) 446, 22 Am. Dec.
86; Smith v. Whiting, 9 Mass. 334; Johnson v. Mangrum, 65 N. C.
146. But it has been affirmed that a note given to two joint adminis-
trators may be transferred by one of them where it is given for a
debt due the estate: Mackay v. St. Mary's Church, 15 B. I. 121, 2
Am. St. Rep. 881, 23 Atl. 108. In this case the court said: "Can a
note given to two joint administrators be transferred by one of them!
There is no question that one of two executors or administrators may
transfer notes held by the deceased, for the reason that the several
persons are considered as holding one office, and in the settlement of the
estate, the act of one is equivalent to the act of all; the power of the
office may be fully exercised by one, for each takes the whole in his
representative capacity, and not a moiety: Stone v. Union Savings
Bank, 13 R. I. 25. When, therefore, administrators, in collecting as-
sets, take a note payable to themselves as administrators, though the
form of the obligation be changed, its character is the same; it is still
a debt due to the estate, not to them personally, and its proceeds are
assets of the estate. We see no reason, therefore, why the same rule
should not apply as though the obligation remained in its original
form. The case is quite different from the ordinary case of joint
payees, who may have adverse interests, and where each is entitled
to hold his moiety of the obligation until he sees fit to part with it.
In the ord ; nary cases of joint payees, excepting, of course, copartner-
ships, neither one represents the other; one alone, therefore, cannot
transfer a note without the other. But where one- represents the
whole, as a partner or an administrator, the rule sho-ild follow the
n. And thus it has been held in Bogort v. Hortel, 4 Hill, -1!»2,
where the cases upon this point were carefully examined: See, also, 1
iel on Negotiable Instruments, sec. 268; and 1 Par ins on N"tes
:m<! : I. Most of the cases to which we have been referred by
nit rirr- cases of individual joint payees and cases of part-
dissolntion. In Sanders v. Blain's Admrs., 6 J. J. Marsh.
Am. Dec. 86, the court said that the administrator
and administratrix might have sued jointly or individually, but as
the administrator had undertaken to art individually, nut as adminis-
trator, ho could not transfer the note without the other payee. Smith
v. Whiting, 134, is commented on in Bogert v. Hertel, 4 Hill,
In the pre*' ut case, the notes were yiven for different amounts,
Estate of Barrett. 385
and in different tenor, for a debt due to the estate represented by the
administrators. They were, therefore, assets of the estate, and as
such we hold that they could be dealt with as other assets of the
estate by either administrator."
Sale of Real Estate. — It was a rule of the early common law
that when a power, not coupled with an interest, was given by will
to two or more persons as executors to sell land, it could not be exe-
cuted unless all the executors joined. In case one died, or renounced
the executorship, or declined to join in the execution of the power,
the surviving or acting executors could not make a valid sale. This
rule, however, has long since been departed from, both in England
and the United States, and the law now is that if one or more of the
persons named as executors dies, refuses to act, renounces the execu-
torship or fails to qualify, the others who do qualify and act may
make a valid execution of the power. Even when only one of several
executors qualifies and acts, he alone may make a good conveyance:
Stewart v. Mathews, 19 Fla. 752; Wolfe v. Hines, 93 Ga. 329, 20 S.
E. 322; Clinefelter v. Ayres, 16 111. 329; Wardwell v. McDowell, 31
111. 364; Anderson v. Turner, 10 Ky. (3 A. K. Marsh.) 131; Herrick
v. Carpenter, 92 Mich. 440, 52 N. W. 747; Bartlett v. Sutherland, 24
Miss. 395; Phillips v. Stewart, 59 Mo. 491; Holcomb v. Coryell, 11
N. J. Eq. 476; Corlies v. Little, 14 N. J. L. 373; Weimer v. Fath, 43
N. J. L. 1; Cushman v. Cushman. 116 App. Div. 763, 102 N. Y. Supp.
258, aflirmed in 191 N. Y. 505, 84 N. E. 1112; Koseboom v. Mosher,
2 Denio, 61; Bunner v. Storm, 1 Sand. Ch. 357; Matter of Bull, 45
Barb. 334, 31 How. Pr. 69; Correll v. Lauterbach, 12 App. Div. 531,
42 N. Y. Supp. 143, aflirmed in 159 N. Y. 553, 54 N. E. 1089; Wood v.
Sparks, 18 N. C. 389; Taylor v. Galloway, 1 Ohio, 232, 13 Am. Dec.
605; Zebach's Lessee v. Smith, 3 Binn. (Pa.) 69, 5 Am. Dec. 352;
Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; Jennings v.
Teague, 14 S. C. 229; Love v. Love, 4 Tenn. (3 Hayw.) 13; Fitzgerald
v. Standish, 102 Tenn. 383, 52 S. W. 294; Bedford v. Bedford, 110
Tenn. 204, 75 S. W. 1017; Johnson v. Bowden, 43 Tex. 670. But if
two of the executors qualify and act in the administration, a power
of sale in the will cannot be exercised by one of them alone: Smith
v. Moore's Heirs, 36 Ky. (6 Dana) 417; Smith v. Shackelford, 39 Ky.
(9 Dana) 452; Brown v. Doherty, 93 App. Div. 190, 87 N. Y. Supp.
563; Wasson v. King, 19 N. C. (2 Dev. & B.) 262; Flieschman v. Shoe-
maker, 2 Ohio C. C. 152; Neel v. Beach, 92 Pa. 221; Carroll v. Stew-
art, 4 Rich. 200; Hart v. Rust, 46 Tex. 556. Where a will confers a
power of sale upon two executors and they both qualify, it has been
held that the power must be exercised by both, although one has
moved to another county and ceased actively to participate in the
administration: Board of Education of Glynn County v. Day, 128 Ga.
156, 57 S. E. 359. Benunciation may be presumed, after the lapse of
a long period of time, in order to sustain the validity of a conveyance
made by less than the whole number of executors named in the will:
Prob. Dec, Vol. V— 25
3S6 Coffey's Probate Decisions, Vol. 5.
Eskridge v. Patterson, 78 Tex. 417, 14 S. W. 1000; Nelson v. Carring-
ton. 4 Munf. (Va.) 332, 6 Am. Dec. 519.
Where a will authorizes the executors, or a majority of them, to sell
land, a deed made by less than a majority is ineffectual: Carmichal
v. Elmendorf, 7 Ky. (4 Bibb) 484. And where a will directs the ex-
ecutors to convey real estate, and there are three of them who all
qualify, a conveyance executed by only two is ineffectual: McEae v.
Farrow, 4 Hen. & M. (Va.) 444. But many statutes now provide that
in case there are more than two executors or administrators, the act
of a majority is valid; and under such statutes it would seem that a
majority of the executors or administrators who qualify may execute
a power of sale contained in the will: Cal. Code Civ. Proc, 1355;
Ariz. Kev. Stats., 1642; Idaho Eev. Stats., 5346; Mont. Code Civ.
Proc, 2406; Nev. Comp. Laws, 2818; N. D. Eev. Code, 8016; Okl. Eev.
Stats. 1527; S. D. Pro. Code, 75; Utah Eev. Stats., 3910; Wyo. Eev.
Stats., 4633; Stockdals v. McKown, 1 Nott & McC. 41.
"At common law, if a naked power was given by will to two or
more persons as executors to sell lands, it was incapable of valid exe-
cution, unless all on whom it was conferred joined. If one died, or*
rcnouneed the executorship, the surviving or acting executors could
not make the sale. It was also the rule that if the power was coupled
with an interest, then, if one or more died, or renounced, it would
survive, and was capable of execution by the acting executors. If
there was a devise to executors by name, with directions to sell, the
descent to the heir was intercepted, and the freehold passed to the
donees, coupling an interest with the power; and it was capable of
execution by such of the executors as accepted the trust or remained
alive. The interest feeding the power and keeping it alive was not
a personal interest in the trust; it was the possession, virtute officii,
of the legal estate over which the power was to be exercised. A mere
devise that executors should sell lands, not intercepting the descent
to tli" heir, nor passing any estate to the executors, was a naked
power to sell, which could not be satisfied, unless all joined in its exe-
cution": Tarver v. Haines, 55 Ala. 503.
Leases for Years are assets in the hands of administrators, and
an assignment thereof by one binds the others: Lewis' Heirs v. Eingo,
10 Ky. (3 A. K. Marsh.) 247. If one of several administrators be-
lies, the continuance of a lease reserving rent for the payment of
which IT- dereilnil h:'s ImiumI himself as surety to be injurious to the
he may make an agreement for the determination and giving
up of t ; without joining the coadministrators: Beber v. Gilson,
1 I'a. 54. Where a statute requires a lease for more than one year
to be in writing, and when made by an agenl requires his authority
To lie in writing, and another statute provides that where there are
more than two executors or administrators, the aid of a majority is
valid, 0116 utors, without any written authority from the
Others, cannot make a lea i- iio more than one year: Utah Loan &
i Co. v. Curbutt, 6 Utah, 342, 2:: Pac. 758.
Estate of Tillmann. 387
Pledges and Mortgages.
Pledge of Notes or Bonds. — The authority of an executor or ad-
ministrator over the assets of the estate empowers him to pledge, as
security for the debts of the estate, its notes or bonds: Bailie v.
Kinchley, 52 Ga. 487; Wheeler v. Wheeler, 9 Cow. 34; Appeal of
Wood, 92 Pa. 379, 37 Am. Eep. 694.
Mortgages and Their Release or Payment. — Where a will directs
that the executors shall "exercise their powers jointly," and authorizes
them to raise money by a mortgage of the estate, all must unite in
executing the instrument, and a note and mortgage made by one alone
does not bind the estate: Bank of Port Gibson v. Baugh, 17 Miss. (9
Smedes & M.) 290.
One of two executors may assign a mortgage given to the testator
(George v. Baker, 85 Mass. (3 Allen) 326), or a mortgage given to
them: Bogert v. Hertell, 4 Hill, 492. The foreclosure of a mortgage
may be made by the executors who alone qualify: Alexander v. Rice,
52 Mich. 451, 18 N. W. 214; Steinhardt v. Cunningham, 55 Hun, 375,
8 N. Y. Supp. 627.
Since the acts of one executor in relation to the delivery, gift, sale
or release of the testator's personal property are regarded as the acts
of all and bind the estate, he may consent that the lien of a mortgage
be postponed to the lien of another mortgage: Mutual Life Ins. Co.
v. Sturges, 33 N. J. Eq. 328. One of several executors has authority
to receive payment of a mortgage and satisfy it: D'Isvilliers v. Ab-
bott, 12 Phila. 462; Fesmire v. Shannon, 143 Pa. 201, 22 Atl. 898;
Weir v. Mosher, 19 Miss. 311; or he may release a portion of the
mortgaged premises from the lien of a mortgage given to the testator:
Stuyvesant v. Hall, 2 Barb. Ch. 151. A mortgage payable to the ex-
ecutors, as such, may be satisfied by one of them: People v. Miner,
37 Barb. 466, 23 How. Pr. 223; although perhaps the case of Pearce
v. Savage, 51 Me. 410, may be construed to hold otherwise.
Estate of FREDERICK TILLMANN, Deceased.
[No. 5,816 (N. S.); decided November 10, 1909.]
Legacy — When not Adeemed. — A Bequest of eighteen shares of
stock in a designated corporation is not adeemed where, between
the date of the will and the death of the testator, a securities cor-
poration is organized which is merely a holding company for the
first corporation, owning all stock issued by it and no other property,
and the testator exchanges his stock in the first corporation (twenty-
one shares in all) for two thousand one hundred and twenty-one
shares in the securities company.
36S Coffey's Probate Decisions, Vol. 5.
Petition for partial distribution.
Morrison, Cope & Brobeck, for the petitioners.
COFFEY, J. Testator made his will May 25, 1905. In it
he provided as follows:
"After my demise eighteen (18) of my shares of Tillmann
& Bendel shall be distributed as follows:
"(1) One share to each of my grandchildren, namely:
Annie. Emilie and Nanny Schmelzkopf; Frederick Wil-
helmine and Henry Hohwiesner; Frederick and Agnes Till-
mann ; Lieschen, Hans, Kurt, Erika, Rita and Heinz Ludwig
Rohlwink.
" (2) Four shares to my son Carl Heinrich, who although
without issue, has a vocation in which he cannot acquire a
fortune."
Tillmann & Bendel is a corporation with a capital stock of
sixty (60) shares, of which fifty-six (56) shares are issued and
outstanding. At the time of the execution of his will Ihe
testator owned twenty-one shares of Tillmann & Bendel.
Between the date of the will and the death of the testator,
the United Securities Company was incorporated under the
laws of the state of Nevada, with an authorized capital of
$1,500,000, of which $1,000,000 was in common stock, and
$51 )0.000 in preferred stock.
The United Securities Company is, up to this time, merely
a holding company for Tillmann & Bendel.
The stockholders of Tillmann & Bendel exchanged their stock
for stock in the United Securities Company. Some took pre-
ferred stock and some took common stock. The testator ex-
changed his stock for preferred stock of the United Securities
Company, getting two thousand one hundred and twenty-one
shares for his twenty-one shares in Tillmann & Bendel, or at
the rate of one share of Tillmann & Bendel for one hundred
and oip' shares of the United Securities Company.
The United Securities Company owns all of the issued stock
of Tillinaiui & Bendel, but it owns no other property.
The par value of Tillmann & Bendel stock is $10,000 per
share. In the exchange it was estimated at $10,100, and the
Estate of Tillmann. . 3S9
preferred stock of the United Securities Company was taken
at par.
Did this transaction work an ademption of the specific
legacies? It did not do so, for the reason that the property-
dealt with has not changed in the least. The corpus of the
material property dealt with was the property known as Till-
mann & Bendel. The owners are exactly the same as they
were before ; their proportions are the same ; only their title
is evidenced by a different piece of paper. The property is
the same, though called by a different name.
The decided cases seem to bear out this view : In re Peirce,
25 R. I. 34, 54 Atl. 588.
Testatrix bequeathed certain stock in a bank. Subsequently,
but during her lifetime, the bank consolidated with other
banks, the new concern taking over the liabilities and assets of
the several banks without a formal liquidation, and their stock-
holders being entitled to exchange their shares for shares in
the consolidated bank. Testatrix made the exchange, making
a small additional payment in cash.
It was held that as the transfer was not a sale, but an ex-
change, the legacy of the stock was not adeemed.
Oakes v. Oakes, 9 Hare, 666: Testator by his will be-
queathed as follows: "I give and bequeath all my Great "West-
ern railway shares, and all other the railway shares, which
I shall be possessed at the time of my decease, unto my
nephew, Arthur Oakes, for his own absolute use and benefit."
Afterward, before the death of testator, by a resolution of
the company made under the authority of an act of parlia-
ment, the shares of the company were converted into con-
solidated stock. It was held that the legatee took the con-
solidated stock into which the shares were converted ; although
he did not take other consolidated stock which the testator
bought afterward and which he held at the time of his death.
This case was overruled as to the matter of the additional
stock in Morrice v. Aylmer, L. R. 10 Ch. App. 148, L. R. 7
H. L. 717.
The vice-chancellor in Oakes v. Oakes, 9 Hare, 666, held
that "shares" and "stock" were different; but in Morrice v.
Aylmer, they were held to mean practically the same thing,
and therefore a bequest of shares would carry stock. But as
390 Coffey's Probate Decisions, Vol. 5.
to the point involved in this present case, Oakes v. Oakes has
never been overruled: In re Slater, Slater v. Slater (1907),
1 Ch. 665, affirming same case (1906), 2 Ch. 480; 8 Am. &
Eng. Ann. Cases. 141.
A specific legacy of stock in a corporation was held adeemed
where, after the execution of the will, the testator exchanged
the stock for stock in another corporation which succeeded to
the rights, duties and property of the first corporation. The
succession (water companies) was made by virtue of an act
of parliament. But the new company was not identical with
the old company. It took in other properties and derived its
revenues from additional sources, and, in fact, there was a
sale of the old stock made upon a cash basis, and a purchase
of the new.
The M. R., Cozens-Hardy, however, cited Oakes v. Oakes, 9
Hare, 666, with approval, where shares were converted into
stock; and where Turner, V. C, said: "The testator had this
property at the time he made his will, and it has since been
changed in name or form only. The question is, whether the
testator has at the time of his death the same thing existing,
it may be, in a different shape — yet substantially the same
thing": Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049.
Testatrix gave to her three sisters "provided they are all
alive, or to the survivors of them, whatever of my money now
on deposit" in four banks of New York City (naming them)
"which may be on hand, and not otherwise disposed of, share
and share alike." During the life of the testatrix, she drew
her money from the four New York banks. She told a friend
that she intended to deposit the money in the Hoboken Bank,
which she did; and it remained in the latter bank until her
donth.
The vice-chancellor held that this was a gift of a specific
icy, ;ind that it was not adeemed.
"if is true lhat a general deposit in a bank creates a debt
from the bank to the depositor. The bank is not bound to
pri serve the money in specie, and it can be paid by the de-
livery of any money of equal amount. It is also true that a
tamentary gift of a debt due to the testator is adeemed, if
the debt is paid to the testator during his life. But it seems
to me that, while such a deposit creates a debt, yet the gift
Estate of Tillmann. 301
of the amount of such a deposit, as money or cash, differs
from the gift of an ordinary debt. It will pass by a gift
of all the testator's ready money or cash. Sir Launcelet
Shadwell in the case of Parker v. Marchant, 1 Younge & C.
290-307, affirmed by Lord Chancellor Lyndhurt on appeal (1
Phil. Ch. 356) said: "Undoubtedly an ordinary balance in the
banker's hands is, in a sense, a debt due from him. Cer-
tainly he may be sued for the debt. But it may be equally
true that, in a sense, it is ready money The term
'debt,' however correct, is not colloquially or familiarly ap-
plied to the balance at a banking-house. No man talks of his
banker being in debt to him. Men, speaking of such a sub-
ject, say that they have so much in their banker's hands, a
mode of expression indicating virtual possession, rather than
a, right to which the law applies the term 'chose in action.'
• • • •
"In the present case the intention of the testatrix was not
to give a mere thing in action. What she gave was the money
in the banks — using the words in their popular sense
' ' The thing she bequeathed she drew from the bank. It re-
mained the identical thing bequeathed, until disposed of in
some way by her. She could have disposed of it by consum-
ing it in living, or turning it into other property, or devoting
it to a purpose inconsistent with the bequest. She did neither
of these things, but, on the contrary, took the specific thing
which she got from the bank, and kept it until April 1st, fol-
lowing, and then with a slight addition placed it in the
Tloboken Bank": In re Pilkington's Trust, 13 L. T., N. S., 35.
Testator in his will dated September 25, 1860, made a be-
quest of "all his Lake Erie bonds and debentures" and other
property to certain persons upon certain trusts, "according
to the values and qualities thereof respectively. ' ' On October
5, 1861, he made a codicil, but did not in any manner refer to
the above specific request. He died November 27, 1861. At
date of will he had five $1,000 unsecured bonds of the "New
York and Erie Railroad Company." This company becoming
insolvent, a new company was formed, called the "Erie Rail-
way Company." By the arrangement made on that occasion,
the holders of the bonds of the "New York and Erie Railroad
Company" became entitled, upon surrendering their un-
392 Coffey's Probate Decisions, Vol. 5.
secured bonds, to shares in the preferred capital stock of the
"Erie Railway Company" in request to those bonds.
The testator accordingly surrendered his said bonds, and re-
ceived in exchange fifty-eight shares of the preferred capital
stock of the "Erie Railway Company," and seventy-five dol-
lars in the same stock. Of the fifty-eight shares and the
seventy-five dollars the testator was at the time of his death
possessed, for which he held two certificates of the company,
dated New York, July 20, 18G1 ; and he was not at the time of
his death possessed or entitled of or to any bonds or deben-
tures answering to the term "Lake Erie bonds and deben-
tures," or to any debentures, bonds, stock or other securities
in any railway in North America except the shares and stock
above mentioned.
The contract by which the property of the "New York and
Erie Railroad Company" was transferred to the "Erie Rail-
way Company" was dated October 22, 1859. By that con-
tract the bondholders of the former company agreed to ex-
change their bonds for preferred stock of the latter. It did
not appear that the testator at the date of his will was aware
of the negotiation and contract; but it was abundantly clear
that he assented to it, because he paid to the "Erie Railway
Company" on or before the twentieth day of July, 1861, his
share amounting to $145 of an "assessment" or contribution
of two and one-half per cent, upon the holders of unsecured
bonds, assenting to the contract, for cash necessar} r to com-
plete the purchase, as appeared by a receipt which was pro-
duced.
Vice-Chancellor Stuart held that the legacy was not
adeemed. "No doubt there is this difficulty (and I wish it
to be understood that I do not overlook it), that these bonds
were for a specific sum defined by the language of the bonds
themselves. By the quality impressed upon them at the time
when the testator made his will, it was necessary for him to
pay more money to acquire that other specific thing, which
scons to me sufficiently to answer the description of the sub-
ject matter of the gift. But it seems to me that that cannot
alter the construction to be put upon the will, for I think there
i- here a sufficient description of that specific lliing into which
it wa.s the testator's wish these bonds, which he had specifically
given, should be converted (though not by his uA'h act), and
Estate of Tillmann. 393
that he intended they should pass by the description in his
will. The shares, therefore, must be declared to have passed
by the description of the bonds and debentures."
Ademption, in strictness, is predicable only of specific, and
satisfaction of general, legacies : Beck v. McGillis, 9 Barb. 35,
56; Langdon v. Astor, 3 Duer, 477, 541.
Where the owner of land devises the same, together with
the business and buildings 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 sub-
stance of the property, and on his death the devisees and
legatees named in his will are entitled to a distribution of
the property as therein specified: Estate of Garratt, 3 Cof.
Pro. Dec. 394.
"Ademption is the technical term used to define 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 in-
operative, 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, 75 Conn. 683, 55 Atl. 171;
Estate of Garratt, 3 Cof. Pro. Dec. 403, note.
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, be-
quests of certain definite objects: Hood v. Hay den, 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. Mc-
Gillis, 9 Barb. (N. Y.) 35; Hoke v. Herman, 21 Pa. 301;
Stanley v. Potter, 2 Cox, 180; Humphreys v. Humphreys, 2
Cox, 184. See note to Estate of Garratt, 3 Cof. Pro. Dec. 415,
for a full discussion of this topic.
Application granted.
Ademption of Legacies is discussed in Estate of Garratt, 3 Cof.
Pro. Dec. 394, and note.
39± Coffey 's Probate Decisions, Vol. 5.
Estate of MARY JANE HOLMES, Deceased.
[No. 14,215; decided July 22, 1897.]
Expense of Litigation — Allowance to Executor. — The expense of
necessary litigation involving the estate of a decedent is a part of
the expense of administration for which the executor is entitled to
allowance.
Expense of Litigation — Reimbursement by Devisee. — If the amount
of moneys bequeathed to the legatees in a will exceeds the amount
left by the testatrix, a devisee of land involved in litigation should
be required, before distribution to him, to reimburse the executor
to the extent of his outlay in such litigation, it not appearing from
the will that the testatrix intended the devisee to take the property
intact at the expense of the legatees.
ALLOWANCE TO ADMINISTRATOR FOR INTEREST ON DIS-
BURSEMENTS.
The question as to whether the superior court in probate has power
to allow interest to an administrator on disbursements made by him
as expenses of administration (including the administrator's commis-
sions and counsel fees allowed by law) when it is shown conclu-
sively that the estate consists entirely of an undivided interest in
unproductive real property, and that a probate sale of same would
be most disadvantageous and to the detriment and injury of the
estate, and would cause pecuniary loss, arose in the Matter of the
Estates of Drouaillet and Thomas, Nos. 3146 and 3147, new series, re-
ively, department nine, Coffey, J.
The precise question above involved seems never to have been
presented to the supreme court of this state, but the question of
charging an administrator or executor with interest for different
reasons on sums collected or paid out by him, which is practically
the converse of the question herein involved, has been frequently
passed on by that court, which has held in a line of cases, coinmenc-
v.ith In re Moore, 96 Cal. 522, 31 Pac. 584:
"In settling the accounts of the administrator, and in ascertaining
the distributive share of those entitled to succeed to the estate
of a deceased person, and in adjudging what shall satisfy the decree
ribution, the superior court, in the exercise of its probate
jurisdiction, proceeds upon principles of equity, and may so frame
its jndgm< nt as to do exact justice in regard to all matters properly
entering into the account of the administrator, and which, in the
ion of equitable rules, affect the distributive shares of the
te."
decision then goes on to cite several New York cases, es-
; illy In re Niles, L13 N. Y. 556, 21 N. E. 687; Hylund v. Baxter,
Estate of Holmes. 395
98 N. Y. 610, and others in support of this principle, and quotes
at some length from the decision in 113 N. Y.
Again, in Ee Clos, 110 Cal. 501, 42 Pac. 971, the same doctrine
is clearly enunciated, and in the same New York cases again cited
and quoted from.
In the matter of In re Clary, 112 Cal. 294, 44 Pac. 569, the su-
preme court in enunciating the same doctrine went further, and
charged the administrator with interest on sums withheld by him
from the legatee. This case, of course, is considerably stronger than
the question here involved by reason of the element of fraud which
was charged to the administrator therein. However, in that case
it was said "that the award of the interest is but an incident to the
right to award the principal, and proceeding as it does in accordance
with the equity, the probate court must be held to have jurisdiction
to afford complete and adequate relief in the premises, since equity
does nothing piecemeal."
It is well established in California that a claim against an estate
of a deceased person, which has been passed upon on the settlement
of the final account of the administrator, has the effect of a judgment
against the estate and bears interest at the rate of seven per cent
per annum from the date of the decree settling the account, al-
though the demand upon which the claim was founded did not bear
interest: Estate of Olvera, 70 Cal. 184, 11 Pac. 624; Estate of Glenn,
74 Cal. 567, 16 Pac. 396.
Section 1915 of the Civil Code defines interest and section 1920 of
the same code provides that all judgments shall bear simple interest,
and section 1914 of the Civil Code provides that an advance of
money is presumed to be made upon interest unless otherwise expressly
stipulated.
Pursuing the investigations on this question outside the state of
California, it appears that this question has been presented before
several courts of sister states, some of which, however, are not
courts of final resort.
In the case of Liddel v. McVicker, 11 N. J. L. 44, 19 Am. Dec.
369, the very question here involved was presented to the court,
which, after discussing the matter, decided that interest may be
allowed by the probate court on advances made by the executor
or administrator where they were made in good faith and were
meritorious and beneficial to the estate. The discussion of this
matter on pages 372-374 of volume 19 of the American Decisions is
interesting and the court there says: "There is no rule of law or
principle of equity sanctioned or adopted in our country which
unqualifiedly and under all circumstances denies interest to an
executor or administrator upon moneys actually and in good faith
advanced for the use of the estate."
In a Pennsylvania probate court it was held that when an adjudi-
cation upon an executor's account has been confirmed absolutely, the
awards whether to creditors or legatees become final judgments and
396 Coffey's Probate Decisions, Vol. 5.
if not promptly paid bear interest from that date: In re Wain-
wright's Estate, 37 Leg. Int. (Pa.) 374.
In the case of Billingslea v. Henry, 20 Md. 282, it was held that
if an executor has not assets sufficient, and is compelled to resort to
the land, the executor is treated as a creditor, and subrogated to the
rights of creditors whose claims he has paid and is entitled to inter-
est thereon.
In another Pennsylvania court of first instance it was held that
when an executor advances money to pay decedent's debts, he is
entitled to interest where the estate is the gainer: Hobson's Estate,
25 Pa. Leg. Jour. 456.
From the foregoing decisions it was argued that it was clearly
within the sound discretion of the probate department to allow inter-
est on the disbursements made by the administrator in the two
estates first above mentioned on final distribution. It was claimed
that the moneys advanced, by the administrator were necessary
expenses of administration and were for the benefit of the estate.
Likewise, the moneys advanced for the collateral inheritance taxes,
which bear interest under the statute at ten per cent per annum.
Sections 1618, 1619 of the Code of Civil Procedure, provide for the
payment of administrator's commissions and counsel fees, and under
these sections counsel for administrator argued that these commis-
sions and counsel fees have the same standing as the other costs
of administration, and that interest should be allowed on them like-
wise, asserting that as the administrator in these estates, under the
law, is entitled to his commissions immediately upon final distribu-
tion, as also the allowance for his counsel fees, both of these terms
should be classed in the same category with the other expenses of
administration. When these two amounts have been advanced by
the administrator clearly for the benefit of the estate, that under
the decisions above cited the administrator may be considered a
creditor of the estate to the extent of his advancements, which may
be made a lien on the real property of the estate (Finnerty v. Pennie,
100 Cal. 404, 34 Pac. 869), and it was here argued that it is discre-
tionary with the probate court in the exercise of its equitable powers
to do absolute justice to allowing legal interest on the whole of the
said lien.
.Judge Coffey, however, held that the citations were not authori-
ties on the points raised, and that commissions, counsel fees and
inheritance taxes did not come within the scope of the cases cited.
An allowance to an attorney is not a judgment or claim which
bean interest: Welsh v. Pennie, 103 Cal. 350, 37 Pac. 392.
The same reasoning would cover commissions of an administrator
and, indeed, other expenses of administration.
Estate of Adamson. 397
Estate of RICHARD ADAMSON, Deceased.
[No. 9,013 (N. S.); decided March 21, 1910.]
Estate of $1500 — Estimating Value by Excluding Homestead. —
Where a statutory homestead from community property has been
set apart in probate to the widow, its value is not considered in de-
termining whether the estate exceeds $1500. Hence, the petition of
the widow to assign to her personal property valued at $500 should
be granted, although the homestead is valued at over $3,000.
Estate of $1500.— The Publication of Notice to Creditors is unneces-
sary where the court assigns the whole estate to the widow under
section 1469 of the Code of Civil Procedure.
R. L. Husted, for the petitioner.
COFFEY, J. Richard Adamson died leaving a widow.
His estate consisted of personal property amounting to
$523.38, and a statutory homestead from community prop-
erty, valued at $3,500.
Two questions arise: 1. Can the court assign the personal
property to the widow (the homestead having been set off to
her), under section 1469 of the Code of Civil Procedure?
2. If the estate is so assigned, must notice to creditors be pub-
lished ?
Section 1469 of the Code of Civil Procedure provides:
"If on the return of the inventory it shall appear therefrom
that the value of the whole estate does not exceed fifteen hun-
dred dollars, and if there be a widow, the court or judge
thereof, shall by order require all persons (to appear and
show cause, etc.). If upon the hearing the court finds that
the value of the estate does not exceed fifteen hundred dollars,
it shall by decree assign to the widow (or minor children,
as the case may be) 'the whole of the estate,' subject to en-
cumbrances, and after payment of expenses of last illness,
expenses of administration and funeral charges, and the
title thereof shall vest absolutely in the widow, or minor chil-
dren."
In the case in hand, if the homestead is to be considered
by the Court when finding that the value of the estate does,
or does not, exceed $1,500, then the petition of the widow to
398 Coffey's Probate Decisions, Vol. 5.
assign the whole of the estate must be denied. If it is not to
be considered, then the petition should be granted.
The widow acquires her title to the homestead by right of
survivorship, and not by the decree setting apart the home-
stead, the decree only withdrawing the homestead from ad-
ministration. The inventory and appraisement was made and
returned, the homestead had ceased to be part of the intestate's
estate and was not subject to any procedure of administra-
tion: Estate of Tompkins, 12 Cal. 114; Estate of Hardwick,
59 Cal. 292.
Section 1443, Code of Civil Procedure, provides that in the
inventory and appraisement of an estate to be returned to the
court, that said appraisement must include the homestead.
This would seem at first glance to have intended to include
the homestead as part of the assets of the estate of the de-
ceased, but construing it along with section 1476, it seems
that the sole purpose of including the homestead in the ap-
praisement is for the purpose of ascertaining whether or not
it was declared in compliance with the code provisions relat-
ing to declarations of homesteads, and when, from the return
of the appraisement, it is found that the homestead is valued
at an amount not exceeding the limit prescribed in the code,
it is removed from further consideration by this court, and is
in no proceeding considered part of the estate of the deceased,
and for the purposes of administration the court can pro-
ceed as if no such estate was mentioned in the appraisement.
The question has arisen in this case whether publication
of notice to creditors should not have been made. The easiest
method of arriving at an answer to this question seems to be
to inquire what benefit could accrue to said creditors by such
publication, or what rights of theirs would be impaired by
failure to order such publication. The law cannot be con-
strued as ordering a useless proceeding where absolutely no
It can be obtained therefrom. In the case at bar, the
hon I is exempt from the claims of creditors, and the
rty upon which they can have any claim whatever
is the persona] property mentioned in the inventory and ap-
praisement. This personal property, amounting to less than
•00, can be adm upon under section 1469 of the
Code of Civil Proc< dure, and when such proceedings are had,
Estate op Adamson. 399
the creditors receive the full protection intended to be given
them by the code. It seems to be the settled policy of the
courts of this state to discourage attempts to prolong the
course of administration and to restrain the tendency to incur
useless expenses where they can neither afford any relief nor
bestow any benefit upon any party concerned in the admin-
istration.
In Estate of Atwood, 127 Cal. 427, 59 Pac. 770, while the
facts were not similar to the facts here presented, nor did the
decision decide the point in controversy in the present case,
yet the language of the court is applicable to the case at bar.
"Publication of notice to creditors could have no possible
effect except to diminish and to help to eat up the very
small pittance left to the widow by the deceased. It could
not possibly benefit creditors. Then why should notice be
given to them? The costs of publication, the commissions of
the administrator, and the fee of his attorney would have to
be paid out of the widow's mite. It might benefit the admin-
istrator, his attorney and the publisher of a newspaper, but
the object of the law is to protect the widow and minor
children, and not to pay out of the estate useless expenses to
persons in no way interested in the estate except to the extent
they n-&y be able to get money out of it": Saddlemire v.
Stockton S. etc. Soc, 144 Cal. 653, 79 Pac. 381.
The homestead is not a part of the estate for distribution,
or for payment of debts, expenses of administration, expenses
of last illness, or funeral expenses. The "estate," as such,
has no title to it. Hence, when section 1469 uses the words
"whole estate" it means the estate which is for distribution.
This view is strengthened by the provision that "whole es-
tate" can be assigned, after payment of expenses of last ill-
ness, etc. ; whereas a homestead must be set apart without
reference to those expenses.
Hence, where the value of the estate, without reference to
the statutory homestead, is found by the court not to exceed
$1500, the "whole estate" can be assigned under section
1469 to the widow, or minor children, if there be no widow.
It is not necessary that notice to creditors be published
if the court assigns the whole estate : Estate of Palomares, 63
Cal. 402 ; Estate of Atwood, 127 Cal. 427, 59 Pac. 770.
400 Coffey's Probate Decisions, Vol. 5.
QUESTIONS AND ANSWERS IN PEOBATE.
A. "Where the husband and minor children survive, the inventory
and appraisement presented and filed, and the court is asked to set
aside property exempt from execution, does the order made by the
court in the premises eliminate the publishing of notice to creditors,
and all further procedure, and close the estate?"
The Code of Civil Procedure of California — the statutes of Arizona
being the same — provides that every executor or administrator shall
immediately after his appointment cause a notice to creditors to be
published, etc. (sec. 1490), and if he neglects to do so for two months,
his letters must be revoked (sec. 1511). While these provisions may
not be mandatory, but directory, yet no exception to the general
rule above mentioned is made, except in eases in which the entire
estate is set apart, as in section 1469, Code of Civil Procedure, and
the first clause in Arizona Revised Statutes, 1730, and that excep-
tion in California is made by judicial construction: Estate of At-
wood, 127 Cal. 427, 59 Pac. 770; Estate of Palomares, 63 Cal. 402.
When property exempt from execution is set apart, the order only
determines (1) that the property is exempt from execution and is set
apart, and (2) the persons to whom it is so set apart. There is no
adjudication (as under "summary administration") that the property
exempt from execution is the entire estate. That issue cannot be
presented in the proceedings to set aside property as exempt.
The notice to creditors should be published in the case mentioned
in "A."
B. "Or can a summary administration be had, when the survivors
are as mentioned?"
The law of California (Code Civ. Proc, sec. 1469) provides
that there may be a summary administration when the estate
does not exceed $1500, where there is a widow or minor children
of the deceased. The statute of Arizona (Rev. Stats., 1730) in the
first clause (we leave the second clause out, as notice to creditors is
provided for) fixes the value of the estate at $2,000, and directs that
(on proper proceedings) the court must assign for the use of the
widow and minor children, or if there be no widow, then for the
use of the minor children, if any, the whole of the estate, etc.
Under the law of California, the whole estate is set aside to the
widow, and if there be no widow, to the minor children, to the ex-
clusion of the surviving husband, if any: Estate of Leslie, 118 Cal.
72, S 29.
And in such case publication of notice to creditors is not re-
quired: Estate of Atwood, 127 Cal. 427, 59 Pac. 770.
While Arizona Revised Statutes, 1730, authorizes "summary admin-
istration" in estates of intestates (our section 14G9 being applicable
to estates (if both testates and intestates), the rule will be the same —
that the estate bet apart shall go to the minor children to the exclu-
Estate of Adamson. 401
fiion of the surviving husband, if any, and that the publication of
notice to creditors is not required, if the decisions of our supreme
court are good law.
C. "Where the wife and minor children survive, the inventory
presented and filed and the court proceeds under the summary ad-
ministration section setting aside the estate, can the widow encumber
the property by mortgage or otherwise, the entire estate, or must
she resort to guardianship proceedings to encumber the children's
portion?"
The widow cannot encumber the entire estate when set apart under
"summary administration," as, under Arizona Eevised Statutes, 1730
(first clause), in the case njentioned the property vests in the widow
and minor children. The interests of the minors can only be en-
cumbered by taking proceedings under Eevised Statutes, 1816, and
then only to pay the debts of the minors, or for the other purposes
mentioned in the law: Howard v. Bryan, 133 Cal. 264, 65 Pac. 462.
D. "Where the husband survives, the procedure being under the
exemption statutes, husband administrator, is it mandatory that he
publish notice to creditors? The entire estate appraised at less than
the amount of exemption provided by the Arizona statutes."
When, on the return of the inventory in an intestate estate, it.
appears that the value of the whole estate is less than $2,000, the
probate court must, after certain notice and proceedings, assign for
the use and support of the minor children, if there be no widow,
the whole of the estate, after payment of certain expenses enumerated
in the statute, and there must be no further proceedings unless
further estate be discovered: Ariz. Bev. Stat., sec. 1730. In such
case, the administrator is not required to publish notice to creditors:
See Estate of Atwood, 127 Cal. 427, 59 Pac. 770.
E. "(Being a case where the husband survives, and minor children,
the estate being inventoried as separate of wife.) The husband ad-
ministrator, through his attorney, presents a petition praying that the
estate, consisting solely of real estate, be assigned to the surviving
husband upon his paying to the children a sum equal to the financial
value of their interests therein. I contend that the husband cannot
take an equitable interest in the property, it being the separate estate
of the estate and being impressed that a life estate is about equal to
mortgage or lien on the property."
Where, in the estate of an intestate, property is assigned for the
use and support of minor children (the property being the separate
estate of a deceased wife), under Arizona Eevised Statutes, 1730,
the property becomes the property of the minor children, and the
surviving husband has no interest therein. Section 1730 provides a
special rule for this class of cases, which prevails over the general
rule provided in section 1729 — at least such is the settled law under
the California decisions.
Prob. Dec, Vol. V— 26
402 Coffey's Probate Decisions, Vol. 5.
The property being vested in the minor children, they can only
be divested of it by appropriate proceedings in guardianship. In the
proceedings in the estate of the deceased wife now pending, the
probate court has no jurisdiction to assign the property of the
minors to the surviving husband, as that would be nothing more nor
less than a sale, which, as before observed, can only be made in
guardianship proceedings. It cannot be contended that, in the estate
new pending, the court could assign the property of the minors to a
stranger. The surviving husband, in the matter in hand, stands
on the same footing as a stranger, as he has no interest, legal or
equitable, in the property.
Estate of JOHN R. HITE, Deceased.
[No. 13 (N. S.); decided 1906.]
Attorney Fees — Allowance to Executor. — Section 1616 of the Code
of Civil Procedure, as amended in 1905, gives no right to an attorney
for an executor to fees which he did not possess before. Prior to the
amendment his fee might be an allowance to the executor as part
of the expenses of administration; that is still the case.
Attorney Fees — Allowance to Executor. — Under the amendment of
1905 to sections 1616 and 1619 of the Code of Civil Procedure, at-
torney fees are still an allowance to an executor or administrator
to be accounted for by him in his accounts.
Attorney Fees — Allowance Directly to Attorney for Executor. —
Under section 1616 of the Code of Civil Procedure the attorney for
an executor or administrator may in his own name petition for an
allowance of fees; but attorney fees that cannot properly be allowed
the executor or administrator in his accounts cannot be allowed di-
rectly to the attorney.
Executor — Forfeiture to Commissions by Misconduct. — An executor
does not forfeit his right to commissions or allowances by miscon-
duct in office.
COFFEY, J. In June, 1906, F. A. Berlin petitioned this
court for admission to probate of the will of John R. Hite,
alleging that the will consisted of three documents: 1. The
final will dated July 29, 1902, which nominated him as
•utor; 2. The first codicil dated March 29, 1906; and 3. A
second codicil dated April 16, 1906.
The papei presented as Hn* original will, among the other
I, bequeathed $5,000 each to Alexander Mathews, Etta
Estate op IIite. 403
Gross and Mrs. Libbie Stearns, and bequeathed $10,000 to
his sister Lucretia V. Grove. The residuum of the estate was
bequeathed and devised, one-third to Lucretia V. Grove, one-
third to J. Claude Riley, and one-third to the children of
Martha E. H. Cupp, a deceased sister.
The paper presented as the first codicil revoked the legacies
of $5,000 each to Alexander Mathews, Etta Gross and Mrs.
Libbie Stearns, and bequeathed to each of them instead the
sum of $2,000.
Two new legatees appear in the codicil: Mary Grove to
the amount of $5,000, and the Central Trust Company, as
trustee of a minor, was left a promissory note for $3,758.72
dated July 26, 1903. It does not appear whether the note
bore interest, or what, if any, interest was unpaid.
The interests of the residuary legatees was but little, if at
all, affected by this codicil.
The paper presented as the second codicil bequeathed to
Lucretia V. Grove $200,000 in lieu of the legacy of $10,000
left her by the original will.
On July 16, 1906, Etta Gross filed a contest to the first
codicil, and on the same day Etta Gross and J. Claude Riley
filed a contest to the second codicil.
Titus, Wright & Creed filed answers as to both contests
as attorneys for F. A. Berlin, executor, and also filed answer
as to the contest of the second codicil for Lucretia V. Grove,
and performed work in preparing for trial. There was
finally a compromise between Lucretia V. Grove and the con-
testants, and the contest was dismissed. The will and codicil
were admitted to probate and P. A. Berlin was appointed and
qualified as executor, and thereafter petitioned this court for
an allowance to him as executor for fees earned by his at-
torneys, Titus, "Wright & Creed, for services in maintaining
the will and codicils as against the attacks of contestants.
J. C. Riley filed written objections to the allowance of any
attorney's fees on the following grounds: 1. That the alleged
services were rendered prior to the probate of the will and
issuance of letters testamentary ; 2. That the alleged services
were rendered for the benefit of Lucretia V. Grove, not for
the benefit of the estate of John R. Hite; 3. That the court
has no power to allow to the executor attorney's fees in con-
40-i Coffey's Peobate Decisions, Vol. 5.
test of a will before probate thereof ; 4. That if the court has
such power this is not a proper case in which to exercise it.
The court sustained the objection and denied the petition
for allowance.
Prior to the decision of the court it was ascertained that
F. A. Berlin, executor, had appropriated large sums of money
of the estate to his own use and was unable to replace them.
He was suspended from his office as executor and a special
administrator appointed. Thereupon Titus, "Wright & Creed
filed a petition on their own behalf for an allowance for at-
torney's fees, setting up the same facts as to services rendered
as were contained in Berlin's petition, and alleging in addi-
tion the suspension of said Berlin for violation of his trust,
and claiming that they were entitled to an allowance under
section 1616, Code of Civil Procedure, and that they should
not be deprived of their fees by reason of the misconduct of
Berlin after their services had been rendered and their em-
ployment ended. To which petition J. C. Riley filed a de-
murrer. Before the filing of the demurrer an order had been
made revoking the letters testamentary issued to Berlin. The
court sustained the demurrer and denied the petition.
The court declines to pass upon the question whether or not
it is in the power of the court to make an allowance to the
person named in a will as executor for attorney's fees con-
tracted for by him, in resisting a contest to a will proposed
for probate and before probate thereof, such decision being
unnecessary to the decision of this case. "Where, as in this
case, a contest of a will is inaugurated by one residuary lega-
tee against another residuary legatee, it is a controversy in
which a person named as executor in the proposed will, and
flu- (state of the decedent, is not interested. In such case it
would be improper to allow the nominated executor fees of
an attorney employed by him to resist a contest. Section
I'M (I of ihe Code of Civil Procedure, as amended in 1905,
do right to an attorney for an executor to fees which
he did not possess before. Prior to the amendment his fee
mighl be an allowance to the executor as part of the expenses
of administration. That is still the case. Section 1616, prior
to l!' 1 )."), read thus: "He shall be allowed all necessary ex-
penses in the care, management, and settlement of the estate,
Estate of Reddy. 405
including reasonable fees paid to attorneys for conducting the
necessary proceedings or suits in courts."
In the amendment of 1905 the portion of the section itali-
cized as above was omitted, but the omitted portion was in
effect incorporated in the new section 1619 passed on the
same day as the amendment to section 1616 and in pari
materia with it. Attorney's fees are still an allowance to an
executor or administrator and to be accounted for by him in
his accounts. Under section 1616, as amended, the attorney
may in his own name petition for allowance of fees, which
he could not do previously, but the fees to be allowed are
the fees which would have been properly allowed to an execu-
tor or administrator in the settlement of his accounts. This
court, having decided in the matter of the petition of Berlin
that the fees of these attorneys could not properly be allowed
to him in his accounts, cannot allow such fees directly to the
attorneys. An executor does not forfeit his right to commis-
sions or allowances by misconduct or embezzlement. The de-
cision of these petitions has not been influenced by the official
misconduct of Mr. Berlin.
Estate of Reddy was before the supreme court in 155 Cal. 390, 436,
448, 101 Pac. 8, 443, 448.
Estate op PATRICK REDDY, Deceased.
[No. 23,438; decided September 29, 1906.]
Estate of Decedent — Title of Heirs and Administrator to Land. —
An administrator is in no sense the owner of the real property of his
intestate; the title thereto vests in the heirs, and the administrator
has only a lien thereon for the payment of debts and the costs of
administration, and he acts only as agent or trustee for the heirs,
who are the owners of the property.
Estate of Decedent — Sale of Land by Administrator or Heirs. — An
administrator cannot, even under an order of court so authorizing
him, relinquish the title of his intestate to land within the forest
reserve and select other land in lieu of it; but if the administration
has so far advanced as to be clear of liabilities, then a deed by the
sole heirs and devisees for this purpose will be valid.
Estate of Decedent. — The Title of Devisees to the Land of the an-
cestor comes instantly upon his death; and, subject to the liens of
creditors and the temporary right of the administrator, they may at
once dispose of the property.
406 Coffey's Probate Decisions, Vol. 5.
Estate of Decedent — Sale of Land Pending Administration. — Where,
pending administration, the sole devisees, who are also the heirs
and administrators, make a conveyance of a part of the land, as
devisees and as administrators, the land remaining unsold should,
if a probate sale afterward becomes necessary or expedient, be sold
lief ore the land that has been thus conveyed, and the grantees may
contest a petition to sell the entire property.
Judicial Sale — Estoppel to Deny Validity. — One who causes prop-
erty to be sold under a void judicial proceeding, and retains the pro-
ceeds, cannot question its validity to the prejudice of others who
have in good faith relied and acted upon it as valid.
C. II. Oatman, for the executor applicant.
Cushing, Grant & Cushing, for the opponents.
Galpin & Bolton, also, for opponents.
COFFEY, J. This is an application by the executor of
the will of Patrick Reddy, deceased, for an order of sale of
all of the property of the decedent upon the ground that the
sale is for the advantage, benefit, and best interests of the
estate and those interested therein.
It is opposed b} r the contestants, R. M. Cobban and T. B.
"Walker, on the ground that it is not necessary to pay family
allowance, debts, expenses or charges of administration or
legacies, and that it would be prejudicial to their interests to
the extent of many thousands of dollars, and they assert that
since no heir or devisee of the deceased has asked for a sale
of the property, and as the executor has no interest in the
matter, it is clear that if there be the slightest doubt as to
the granting of the petition, it should be resolved in favor of
thr- contestants, who will be irreparably injured if the sale
be made, and no one will suffer injury if the petition be
denied.
The itor denies that Cobban and Walker have any
interesl in t lie premises; and they have no right to be heard
in the proceeding.
Patrick Kiddy died leaving as his sole devisees and heirs
at law bis widow, Emily M. Reddy, and his brother, Edward
A. Reddy, both since deceased. Up left creditors whose
claims are still unpaid. AVhile his estate was in course of
Estate of Reddy. 407
administration, the widow and brother being administrators,
they undertook to convey a portion of the land of which he
died seised to the United States for the purpose if obtaining
the right to select other lands belonging to the government in
the place and stead of the lands so conveyed. The convey-
ance was executed by them as devisees and also as adminis-
trators. Preceding this transaction certain steps were taken
by the administrators, which it may be well to recount, as
detailed by the counsel for petitioner. The land described
in the deeds had been owned by Patrick Reddy and Mollie
Conklin, an undivided one-half interest by each. During his
lifetime it appears that he had contemplated selling his in-
terest for use as "base" or forest reserve "scrip" for the
selection of other lands under the act of Congress of June 4,
1897, and had given his word to John A. Benson for a sale
to him of the selection right pertaining to these lands for a
certain price, Benson being a dealer in "scrip" of this char-
acter. After Patrick Reddy 's death his widow and his
brother considered that no better disposition could be made
of the lands than that which had been verbally agreed upon
by the deceased ; and, with this end in view, they filed a peti-
tion for an order of sale which came on for hearing on
September 18, 1900, when it was granted and an order made
for a probate sale by them.
Nothing more was done under this order, but on the next
day, September 19, 1900, the court, upon application of the
administrators, made an order authorizing them to surrender
these lands to the government, to select other lands in lieu
thereof, and to sell the lands so selected. This order is con-
ceded to be void and is so treated by the parties to this dis-
cussion. Thereafter and on the same date the conveyance re-
ferred to was executed. The deeds were accompanied by
blank selections, executed by the administrators of the estate
of Patrick Reddy, of the lieu lands, and also powers of at-
torney in blank purporting to authorize the person whose
name might be filled in to represent the selectors in the land
office, and to convey the lieu lands when the selections had
been approved by the land office. All of these instruments,
the deeds of surrender of the Monache lands, the applica-
tions to select lieu lands, and the powers of attorney were
408 Coffey's Probate Decisions, Vol. 5.
executed also by Mollie Conklin, owner of the other undi-
vided half of the lands. The executor calls attention to the
fact that although the deeds of surrender to the government
of the Monache lands were executed by Mrs. Redely and Ed-
ward Reddy in their individual capacities as well as admin-
istrators, the applications to select other lands and the powers
of attorney were executed by them solely in their capacity as
administrators, and not as individuals, and all the proceed-
ings in the entire transaction subsequent to the execution of
the surrender deeds were conducted in their names as admin-
istrators of this estate alone, and the money which was paid
on account of the purchase price of this scrip was received
by them in their official capacity as administrators and ap-
plied and accounted for as the property of this estate, and
not otherwise.
After making the conveyance to the government they sold
to John A. Benson their rights in these lands and to locate
lands, and he in turn sold portions thereof to the contestants
herein and they located thereunder. The deeds convey the
title of Emily M. Reddy and Edward A. Reddy individually
as devisees under the will of Patrick Reddy, deceased, and, in
addition, Emily M. Reddy, as widow of Patrick, and Caroline
S., as wife of Edward, each signed a relinquishment of all
rights in said property. The contestants contend that it can-
not be disputed that all the right, title, and interest of the
grantors passed by these deeds, and it is admitted by the
stipulation in evidence that the deeds were executed with
that purpose ; but it is insisted by the executor that the whole
transaction was conducted as an affair of the estate of Pat-
rick Reddy and for its use and benefit and that the only
purpose in having the surrender deeds Eor the Monache lands
executed by .Mrs. Emily M. Reddy and Edward A. Reddy
was to confirm ami make valid the surrender of these lands
t<> the government by the estate of Reddy in order that that
. acting through its administrators in their official ca-
pacity, might ext rcise the selection right given by the act of
Congress. So, it is claimed by the executor, that it having
tablished by evidence on this hearing that Benson was
rig as a purchaser and not as an agent, the contestants
u-
Estate of Reddy. 409
did not purchase from the Reddy estate, but from Benson,
what he had himself already purchased from that estate.
It is asserted, therefore, that Cobban and Walker, what-
ever pajmients they may have made to Benson on account of
their purchase, or even if they had paid him in full, did not
stand in any better position than Benson himself as against
the Reddy estate.
As to the situation after all these papers had been executed
and delivered to Benson and the surrender deeds put upon
record and the "scrip" or supposed rights represented by the
blank applications and powers of attorney sold and delivered
by him to contestants, the executor says that neither Benson
nor Cobban and Walker through him had acquired any title
to or interest in the Monache lands because the deeds for
these lands ran to the government, and from the very nature
of the case it was never contemplated that Benson or his ven-
dees should ever acquire any title to or interest in those
lands, nor that anything should pass to him or to them except
the selection right based upon a valid surrender of those
lands to the government, and this attempted surrender was
not valid, for it was not a surrender by the "owner" as
required by the act of Congress ; although the surrender deeds
were valid as conveyances by the devisees, but as devisees they
were not the "owners" of the lands. Although the legal title
was vested in them under our code, it was so vested subject
to administration, and might be defeated by a sale of the
lands in course of administration for any of the purposes au-
thorized by the code.
After the contestants made their locations, the government
approved a part of the selections made by Cobban, but as to
the remainder, and the lands located by Walker, it was
claimed that the creditors of Patrick Reddy, deceased, have
a lien upon the lands conveyed, and that until that is re-
moved the application cannot be approved. Therefore, the
contestants ask that the lands belonging to deceased at the
time of his death and which passed to Emily M. and Edward
A. Reddy, subject to the liens of the creditors, and which
they have not conveyed, be first sold before the Monache
lands. The contestants contend that Emily M. Reddy and
Edward A. Reddy, being the sole devisees and owners of all
410 Coffey's Probate Decisions, Vol. 5.
the lands, the same were owned and held by them subject to
the liens of creditors of Patrick Reddy; that they having
sold a part of the lands and thereby created the rights claimed
by contestants, the remainder of the land which they have not
sold must first be resorted to to satisfy the claims of cred-
itors. If this be not done and the lienholders resort to the
property conveyed to the government, the contestants will
lose whatever rights they acquired by purchase from Emily
M. and Edward A. Keddy, and this will be an irreparable
injury and contrary to conscience and at variance with every
principle of expediency and equity, which demands the recog-
nition of the claims of those who have acted in good faith,
giving valuable consideration, for what they esteemed a good
title.
In the deeds to the government were the words, preceding
the description, and after the preamble, "We, Mollie Conklin,
a widow, of Bakersfield, County of Kern, State of California,
and Edward A. Reddy, of the City and County of San Fran-
cisco, State of California, devisee under the last Will and
Testament of Patrick Reddy, deceased, also Administrator of
the Estate of Patrick Reddy, deceased, do hereby release,
remise, quit-claim, grant and relinquish to the United States
of America, the said land." Contestants insist that this con-
veyance passed all the interest which they had in the land;
but the executors respond that they were not the owners of
the land, and upon this premise seems to depend the con-
tention.
After the papers were executed and placed in the posses-
sion of Benson, the contestants, acting in good faith and
with the intention and for the purpose of acquiring a good
title to said selection right paid to him large sums of money,
and in consideration thereof he delivered to each of them
papers covering large tracts of Monache lands. It is said that
<.\^r $2,000 was paid by Cobban and 7,000 by Walker. Over
< >00 of the money thus paid over was used in paying fam-
ily allowance claims and expenses of administration in this
te. After patenting to Cobban several thousand acres of
land based on said surrender of the Monache lands the land
department refused to issue further patents, holding that the
er of this court of September 19, 1900, was void, and that
Estate of Reddy. 411
it was not apparent from the record that the administration
of the estate had proceeded far enough to show that the claims
against it had been paid so that the conveyance which the
devisees and heirs had made would be effectual.
In the letter of the commissioner he says that by the act of
June 4, 1897, the right of exchange is given to the owner of
patented land within the limits of a forest reserve, and it is
settled that the owner only has the right of selection in lieu
of land relinquished ; but an administrator is, in no sense, the
owner of the real estate of the intestate. In California the
title to real estate vests in the heirs and the administrator
has only a lien thereon for the payment of debts of the
decedent and costs of administration, and he acts only as
agent or trustee for the heirs, who are the owners of the
property. The commissioner concludes that it is clear, there-
fore, that an administrator cannot be recognized as having,
even under an order of the court thereunto authorizing him,
the right under the law to relinquish the title of an intestate
to land within a forest reserve, and to select other land in
lieu of it, and that the land selected could not be accepted ;
but while the selection, as it stands, is clearly the act of
Edward A. Reddy and Emily M. Reddy, in their fiduciary
capacity as administrator and administratrix, the several
deeds of relinquishment were signed by them also as devisees
under the will of Patrick Reddy, deceased; and if as to the
decedent's title to this land they were the sole devisees under
such will, and if the administration of that estate had so far
proceeded that the title was free from liability for other
legacies, debts, or costs of administration, it would appear
that their deeds, as such devisees, were sufficient to vest title
to the undivided one-half in the United States ; but, the com-
missioner said, the record did not disclose this fact; and so,
in the circumstances, the selectors were allowed sixty days
from notice within which to present satisfactory evidence
that, as devisees, they had the title to one-half of the land
free and clear of all liens or encumbrances, and, if that should
be satisfactorily shown, they would be permitted to so amend
their application that the selection would be their individual
act and not as administrator and administratrix. So, it would
appear from this that the land department recognizes the heir
412 Coffey's Probate Decisions, Vol. 5.
and not the administrator as the owner who, under the act of
June 4, 1897, is entitled to make the surrender and selection ;
and contestants argue that it is apparent, therefore, that
conveyances to them by the administrators would have been
worthless, while, on the other hand, the conveyances of the
heirs are good as against all but creditors of the estate. The
lands involved herein were relinquished and surrendered to
the government for the purpose of enabling Edward A. Reddy
and Emily M. Reddy to sell the right to acquire other govern-
ment lands in lieu thereof and the consideration for the con-
veyance was the money to be received from the sale of the
selection right based thereon. Edward A. Reddy and Emily
M. Reddy received large sums of money in return for the
papers thus executed by them, and this money was used for
purposes of administration. These documents were executed
for the purpose of transferring their title to the lands and
conveying the selection right incident thereto. The pur-
chasers paid their money with view of acquiring that right.
The minds of the parties met ; the conveyance was completed ;
and contestants contend that neither the grantors nor their
successors can now set it aside, as they are estopped in law and
in equity by their own conduct to deny the title of the con-
testants.
The contention of the executor that the devisees were not
the owners of the land does not seem to be supported by the
authorities, nor was it the view taken by the commissioner
in his letter referred to hereinabove, page 8, lines 10-15. The
executor asserts that the attempted surrender of the Monache
lands was not valid, because it was not by the "owner," ac-
cord inu r to the act of Congress, but the government, through
its commissioner, said that if it appeared on the record that
the administration had so far advanced as to be clear of lia-
bilities llicir deeds as devisees would be sufficient to vest title
in the United States. The act of the administrators would
be void, but that of the devisees valid. It is contended, there-
Ion-, by the executor, that the attempted surrender by the
administrators being void no selection right ever arose or ex-
I which could be the subject of a sale to Benson or by him
to his vendees. How, then, flic executor asks, have the con-
testants any interest in this estate, or any of its property,
Estate of Reddy. 413
and how have they been prejudiced except by their own folly
in attempting to purchase from Benson something which had
no existence? It is not alleged that there was any fraud in
the transaction, but that it was the result of a mutual mistake
of the law, and that no title passed thereby, and the money
paid might be recovered upon the rescission of the contract,
which could not have operated to vest in contestants any inter-
est in this estate.
The devisees and the administrators here were identical in
person, although, of course, distinguishable in law, and some
confusion occasionally occurs from this material identity. As
devisees they divested themselves of their title, but as admin-
istrators their act was a nullity. Benson bought from them
as administrators and then he sold to contestants, who insist
that they acted in good faith, believing that they were acquir-
ing a valid title, and upon belief that such was the fact they
paid the price. Of this amount over $8,000 was used in
paying family allowances, claims and costs of administration.
The same persons that executed the conveyance to the govern-
ment were the recipients of these moneys that came from con-
testants. It is true that not all of the money paid to Benson
reached the administrators; but so far as contestants were
concerned the transaction was consummated. They parted
with their money upon the assumption that they were secur-
ing a right that the vendor was competent, by reason of his
purchase from the Reddys, to sell, and now, if the theory of
the executor be true, they have neither money nor title. The
same persons who sought to sell the selection right were the
sole devisees, and it was natural to assume that they were
possessed of the power of parting with their own property,
although acting nominally in an official or administrative
capacity. The title came to them instantly upon the death
of their ancestor; subject to the liens of creditors and the
temporary right of possession of the administrator, they might
at once dispose of the property. Such is the law as declared
by our supreme court.
It seems to be shown by this rule of law that Emily M.
Reddy and Edward A. Reddy were the absolute owners of all
the lands of which Patrick Reddy died seised, subject, how-
ever, to the liens already indicated; the deed to the United
414: Coffey's Probate Decisions, Vol. 5.
States passed the title to the land described, subject to those
liens. The creditors, through the executor, are now seeking to
enforce their liens. The devisees having taken all the prop-
city of the decedent disposed of a part, and the question now
is, Shall the unsold part, which was subject to the same liens
as that which they sold, be first sold before that part which
they did sell is subjected to the lien? The authorities appear
to answer in the affirmative. If this view be correct, the con-
testants have a right to interfere in this proceeding, and to
insist that their interests be protected by postponing a sale
of the lands conveyed by the devisees to the United States
until it shall be ascertained that the other lands are insufficient
to satisfy the liens.
The contestants paid full value to Benson, but he turned
in less than half to the administrators, and the executor says
that the court should bear in mind, here and at all times, that
Benson did not purchase this selection right from the devisees,
but from the estate of Reddy, and contestants are at most
but successors of Benson ; and if he or they come forward with
an offer to pay the balance of the purchase money due the
estate, they will then stand in better position to demand pro-
tection from this court for their supposed rights as purchasers.
To this it may be answered, that logically, legally, and
equitably their position could not be improved by an addi-
tional or a double payment.
If, as contended by the executor, they bought something
which had no existence, how could their situation be bettered
by the proportion of their payment to the whole purchase
price? They paid once and in full, and if they have any
riiilit at all, it is by virtue of that payment. The record shows
that Benson was to pay the devisees about $18,000; it seems
that the administrators received but a margin more than
100, although the contestants paid him a great deal more
than he stipulated to pay his vendors; and the executor de-
clares thai it is not just or equitable that for this amount,
less than half the agreed purchase price, the estate should
Ix- deprived <>!' this valuable property. It is a case of hard-
ship either way it is regarded, but are the contestants to be
deprived '>f what they were the innocent purchasers, for full
.ration, and without notice, because of the dereliction
Estate op Reddy. 415
of Benson? He was placed in a position which enabled him
to sell to contestants, and they treated him as holding title
derived from the Reddys. If the full amount he received
from the contestants had been used in discharging his debt
to the devisees, it seems to be conceded by the executor that
the estate would not be qualified to deny the claim here as-
serted ; that is to say, if Benson had not made default in his
obligation to the devisees, or the administrators, or the estate,
all being in this case virtually convertible terms, the contest-
ants would be in perfect form to protest this petition ; but
he did make default, and therefore, the contestants are without
remedy.
It is difficult to conceive how, in equity, his failure to keep
his bargain with the Reddys to its full extent could affect the
character of the transaction with contestants. The Reddys
trusted Benson with the title which he conveyed to contestants,
and for which they paid in full ; but he failed to pay likewise
those who had placed faith in him. If anyone should lose,
in these circumstances, should it be the contestants, who acted
upon the hypothesis that Benson was the owner by right of
purchase from the Reddys? It does not seem equitable that
they should be called upon to make up the deficit between the
amount he actually paid the Reddys, or their representatives
as administrators, they acting, in a manner, in a dual capacity ;
nor does it seem logical that if they derived no title at all,
because of the inherent legal vice of the attempted transfer,
that vice could be cured by paying twice over, or answering
for the miscarriage of Benson in his dealings with the Reddys.
If the transaction was valid, it matters not, as to the rights of
contestants, what Benson did or failed to do in the perform-
ance of his contract with the Reddys; if it was invalid, it could
not be aided by the contestants paying several thousand dol-
lars more than they had already paid in complete discharge of
their agreement with and to Benson. This is the dilemma
presented by the executor's contention; but the law seems
to be summed up in the proposition that one who causes prop-
erty to be sold under a void judicial proceeding and receives
and retains the proceeds cannot question its validity to the
prejudice of others who have in good faith relied and acted
upon it as valid, and this seems to be the situation here. If
416 Coffey's Probate Decisions, Vol. 5.
this be the law, the contestants have an interest to appear
in this matter.
It follows, from an acceptance of this conclusion that the
petition of the executor should be denied so far as it applies
to the sale of all the property; that is to say, that before
resorting to the lands in which the contestants claim to be
interested, recourse should be had to the other property to
satisfy the claims against the estate. As to the amounts of
those claims, the schedule is merely an estimate, and may be
accepted for the purpose of this application, except the Ben-
son item. As to the items of attorney's fee and commissions
of administrators and executor, there is no occasion for pres-
ent comment.
Estate of PATRICK LANNON, Deceased.
[No. 17,778; decided August 24, 1897.]
Devise — Whether Specific or Residuary. — If in subdivision 18 of
his will a testator gives all the rest and residue of his property to his
brothers and sisters, share and share alike, and in subdivision 22 he
directs that certain real estate be sold and the proceeds "distributed
pursuant to the eighteenth subdivision thereof," the devise in sub-
division 22 is specific, and therefore cannot abate, the reference to
subdivision 18 being only to identify the devisees.
The opinion in Estate of Lannon was among those destroyed
in San Francisco by the conflagration of 1906.
PERSONAL LIABILITY OF DEVISEES FOR CHARGES IMPOSED
BY THE WILL.
For Payment of Legacies. — It is a well-recognized rule that
when real estate is devised with directions to the devisee to pay a
Legacy, an acceptance of the devise carries with it the personal obli-
gation on the part of the devisee to pay the legacy as directed.
This personal liability may be created by the testator directly, with-
out charging the property: Mason v. Smith, 49 Ala. 71; Olmstead v.
Brash, 27 Conn. 530; Mahar v. O'llara, 9 111. 424; Spearman v. Foote,
L2fl HI. A [.p. 37U; Appeal of Haworth, 105 Pa. 362; Anderson v.
Hammond, 2 Lea (Tenn.), 281, 31 Am. Rep. 612. But most frequently,
oapt, the charge is imposed upon the estate devised. In the latter
the devisee, upon acceptance, may none the less be personally
liable, although the property is also bound; for the rule is that when
realty is devisd, rharged with the payment of legacies, the devisee
is personally liable to pay the legatees if he accepts the devise:
Estate of Lannon. 417
Dunne v. Dunne, 66 Cal. 157, 4 Pac. 441, 1152; Olmstead v. Brush,
27 Conn. 530; Burch v. Burch, 52 Ind. 136; Duke of Richmond v.
Milne's Exrs., 17 La. 312, 36 Am. Dec. 613; Eskridge v. Farrar, 30
La. Ann. 718; Chew v. Farmers' Bank of Maryland, 2 Md. Ch. 231;
Gridley v. Gridley, 24 N. Y. 130; Eedfleld v. Eedfield, 126 N. Y.
466, 27 N. E. 1032, affirming 59 Hun, 620, 12 N. Y. Supp. 831; Lar-
kin v. Mann, 53 Barb. 267; Birdsall v. Hewlett, 1 Paige, 32, 19 Am.
Dec. 392; Dodge v. Manning, 11 Paige, 334; Fox v. Phelps, 17
Wend. 393, 20 Wend. 437; Dill v. Wisner, 23 Hun, 123, affirmed 88
N. Y. 153; Decker's Exrs. v. Decker's Exrs., 3 Ohio, 157; In re Lo-
bach, 6 Watts, 167; Shobe's Exrs. v. Carr, 3 Munf. 10; Kenny's Admrs.
v. Kenny, 25 Gratt. 293; Merton v. O'Brien, 117 Wis. 437, 94 N. W.
340. But his personal liability does not discharge the real estate
from the lien of the legacies charged thereon by the will: Lofton
v. Moore, 83 Ind. 112; Mitchell v. Mitchell, 3 Md. Ch. 71; Hoover
v. Hoover, 5 Pa. 351. Said Justice Story: "I understand it to be
a general rule in the construction of clauses of this sort that where
the testator devises an estate to a person, and in respect thereof
charges him with the payment of debts and legacies, the charges are
always treated as charges in rem, as well as in personam, unless the
testator uses some other language, which limits, restrains or repels
that construction. Upon no other principle can many cases in the
books admit of any rational explanation": Sands v. Champlin, Fed.
Cas. No. 12,303, 1 Story, 376.
To quote from the New York court of appeals: "It is well settled
that when a legacy is given and is directed to be paid by the person
to whom real estate is devised, such real estate is charged with
the payment of the legacy. And the rule is the same when the legacy
is directed to be paid by the executor who is the devisee of real
estate. If the devisee, in such case, accepts the devise, he becomes
personally bound to pay the legacy, and he becomes thus bound,
even if the land devised to him proves to be less in value than the
amount of the legacy. If he desires to escape responsibility, he must
refuse to accept the devise. If he does accept, he becomes bound
to pay the whole amount of the legacy, which he is directed to pay":
Brown v. Knapp, 79 N. Y. 136; approved in Williams v. Nichol, 47
Ark. 254, 1 S. W. 243; Hunkypillar v. Harrison, 59 Ark. 453, 27 S.
W. 1004.
And to quote from the supreme court of Vermont: "It is settled
law that a devisee who accepts a devise charged with the payment
of a legacy thereby becomes personally liable to pay the legacy,
although the land is worth less than the amount of the legacy. This
liability is put upon the ground of an implied promise arising from
the fact of acceptance; for the doctrine is that he who accepts a
benefit under a will must conform to all its provisions, and renounce
every right inconsistent with them": Hodges v. Phelps, 65 Vt. 303,
26 Atl. 625. And to quote from the supreme court of Ohio: "Thus,
Prob. Dec, Vol. V— 27
418 Coffey's Probate Decisions, Vol. 5.
in Glen v. Fisher. 6 Johns. Ch. 33, 10 Am. Dee. 310, it is held that
-where land is devised charged with the payment of a legacy, and the
devisee accepts the devise, he is personally and absolutely liable for
the legacy; and he has no right to require of the legatee, before pay-
ment, a security to refund, in case of a deficiency of assets to
pay debts. And in Fuller v. McEwen, 17 Ohio St. 288, this court
stated the rule in substantially the same language, and held that,
in an action to enforce such personal obligation, the fact that the
isee or legatee is or is not also the executor of the will makes
no difference in the case. The rule is also recognized and stated in
Yearly v. Long, 40 Ohio St. 27. The rule is thus stated in Porter v.
Jackson, 95 Ind. 210, 48 Am. Sep. 704: 'Where lands are devised to
one who, by the will, is directed to pay a legacy, the legacy is
charged upon the land devised; and, when payment of the legacy
is made a condition of the devise, its acceptance creates also a
personal liability to the legatee, which may be enforced without re-
sorting to the land, the lien still remaining as a security.' Many
other cases might be cited to the same effect, and are sustained by
writers of standard authority: Woerner on Administration, 1099;
Williams on Executors, 1272, 1704. The rule rests upon the reason-
able principle that he who takes a benefit under a will must take
it subject to its provisions. Any other construction would neces-
sarily defeat the intention of the testator. So that, where a devisee
is required to pay legacies to others, an acceptance of the devise
imports a promise to pay the legacies; and the legatees have the
right to maintain an action thereon for its nonperformance as though
the promise had been made to themselves": Case v. Hall, 52 Ohio
St. 24, 38 N. E. 618, 25 L. R. A. 766.
The reason, then, for the personal liability of a devisee for lega-
cies, the payment of 'which is charged upon him or the devise, is
apparent. If he were permitted to evade this liability he would
thereby defeat the intention of the testator, and moreover would
y benefits under the will without conforming to its provisions.
He must take the devise cum onere; he will not be allowed to dis-
oint the will under which he accepts a benefit: Glen v. Fisher,
3, 10 Am. Dec. 310. His liability, as stated in the pre-
ing paragraphs, has been put upon the ground of an implied
lise arising from the fact of acceptance: Case v. Hall, 52 Ohio
24, 38 X. B. 618, 2.1 L. R. A. 766; Hodges v. Phelps, 65 Vt.
26 All. 625. The legacy stands upon the footing of an ordinary
debt which he has promised to pay: Wiggin v. Wiggin, 43 N. H.
so Am. Dec. 192.
For Support of Relative. — "Where a testator devises land, direct-
tin- devisee to support a relative or other specified prison for
life or for some Other period of time, making such support a con-
dition of the devise, the devisee, npon accepting the devise, is per-
dly liable for such support: Porter v. Jackson, 95 Ind. 210, 4&
Estate of Lannon. 419
Am. Eep. 704; Pickering v. Pickering, 15 N. H. 281; Collister v.
Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490, affirming
48 N. Y. Supp. 792; Sommers v. Sommers, 59 App. Div. 340, 69 N. Y.
Supp. 866; Snyder's Appeal, 75 Pa. 191. The liability accrues and
may be enforced without demand: Watt v. Pittman, 125 Ind. 168,
25 N. E. 191; Wiggin v. Wiggin, 43 N. H. 561, 80 Am. Dec. 192;
Johnson v. Cornwall, 26 Hun, 499; Dickson v. Field, 77 Wis. 439, 46
N. W. 668, 9 L. E. A. 537. While it may be enforced without re-
sort to the land, still such resort is permissible if necessary when
the will imposes a charge thereon: Porter v. Jackson, 95 Ind. 210,
48 Am. Eep. 704; although it has been held that a personal charge
upon a devisee to furnish support to a designated person cannot
be enforced against the land devised, unless there are words in the
will warranting such a construction: Appeal of Haworth. 105 Pa. 362.
The devisees may be bound for the support, even beyond the value
of the land devised: Porter v. Jackson, 95 Ind. 210, 48 Am. Eep.
704. Devisees who accept land given them by will, which lays on
them the duty of supporting their sisters and mother, become jointly
and severally liable for the support, and one of them who bears
the whole burden is entitled to contribution from the others: Shillito
v. Shillito, 160 Pa. 167, 28 Atl. 637.
For Payment of Debts. — Where a will directs devisees to pay
the debts of the testator as a condition of the testamentary gifts,
the devisees become personally bound for the debts by accepting
the devises: Harland v. Person, 93 Ala. 273, 9 South. 379. And
by accepting a devise charged with the payment of a debt the devisee
becomes personally liable for the debt: Gridley V. Gridley, 24 N. Y.
130, reversing 33 Barb. 250; Dill v. Wisner, 23 Hun, 123, affirmed
in 88 N. Y. 153; Baylor's Lessee v. Dejarnette, 13 Gratt. 152. But
in Hayes v. Sykes, 120 Ind. 180, 21 N. E. 1080, it is declared that
a will, charging the debts of the testator, on a deficiency of personal
assets, upon land therein devised, does not impose a personal liability
on the devisees upon their acceptance. "By the terms of the will,"
said the court, "they took title to the real estate subject to the
encumbrances and charge that was placed upon it In cases
referred to by counsel for the appellant, a personal liability was
imposed upon the devisee. The provisions of the will were such in
each of these cases that by an acceptance of its terms a personal
liability was assumed." The theory of this decision seems to be
that the testator did not intend to impose a personal liability for
the charge, and that in the absence of such an intention there could
be no personal obligation. Clearly, a testator cannot, by any direc-
tion to devisees to pay his debts, prevent his creditors from reaching
his estate if they desire: Carpenter v. Carpenter, 14 N. Y. St. 284.
General Rules of Nonliability.
The fact that a devise is merely subject to the payment of a
legacy does not render the devisee personally liable on accepting the
420 Coffey's Probate Decisions, Vol. 5.
devise. Said Justice Mitchell, in Eddy v. Kelly, 72 Minn. 32, 74
N. W. 1020, "It is undoubtedly true that where real estate is devised
with a naked direction to the devisee to pay a legacy, or upon con-
dition that he pays it, the legacy is a charge on the person of the
devisee, and if he accepts the devise he is personally liable for its
payment. But it is equally well settled that where the devise is
merely subject to the payment of the legacy, the latter is not a
charge on the person of the devisee, and the acceptance of the
devise does not render him personally liable."
The general rule that where a devisee accepts a devise charged
with the payment of debts or a legacy, he becomes personally liable,
is modified by the paramount rule that the intention of a testator
as disclosed by the will must govern its interpretation and effect:
Hunkypillar v. Harrison, 59 Ark. 453, 27 S. W. 1004. Other authori-
ties supporting this proposition are Haskett v. Alexander, 134 Ind.
543, 34 N. E. 325; Eskridge v. Farrar, 34 La. Ann. 709; Nudd v.
Powers, 136 Mass. 273; Cronkhite v. Cronkhite, 1 Thomp. & C. 266;
In re Taber, 116 N. Y. Supp. 960; Worth v. Worth, 95 N. C. 239;
Estate of Semple, 189 Pa. 385, 42 Atl. 28. The Arkansas court, in
the above case, decided that under a will requiring the sole legatee
to "pay out of the proceeds of the property, real and personal,"
specified annuities, the legatee is not personally bound therefor on
accepting the gift. The court, in the course of its opinion, said:
''There are innumerable instances in which the testators, in making
devises with charges thereon, have in terms given direction as what
manner and out of what funds the general devisee is to pay off
the special legacies made a charge upon the property devised. In
all these cases the personal liability of the devisee is more or less
affected, even to the extent in many cases of being entirely want-
ing. And this is so simply from the fact that the obvious meaning
of the testator, as gathered from the language of the will, is to the
effect that he does not wish the devisee to pay the special legacy
at all events, but only as far as the property devised to him will
enable liim to do. This principle is illustrated in numberless cases.
Thus, in Hayes v. Sykes, 120 Ind. 180, 21 N. E. 1080, the following
*n of a will was under consideration in the supreme court
of Indiana: 'I will that, in case there is not enough money in the
bands of the executor of my father's will to pay all my just debts,
I then devise that the property herein devised to my wife, Anna,
a ful to my mother, Mary Ann Sykes, shall be held liable, in equal
or! ion, to pay the same; and to this end I make a charge upon
my BO devised, to perform the same.' Here is a charge upon
two legacies to pay debts, and under the general rule .... the
legatees would be personally bound to pay these debts, whether the
ierty devi ed to them is sufficient or not. But the court, from
;i consideration of the lai of the will, held the real and true
ling of the testator to be otherwise."
Estate of Lannon. 421
In Funk v. Eggleston, 92 HI. 515, 34 Am. Rep. 136, a bequest sub-
ject to legacies with a direction that the legacies should be paid
"out of" the bequest is held not to make the payment of the legacies
a personal charge on the devisee.
Circumstances Affecting Liability.
Acceptance of Devise. — A charge imposed by a testator to pay
debts or legacies does not become the personal obligation of the
devisee unless he chooses to accept the devise: Wilson v. Moore, 86
Ind. 244; Miltenberger v. Schlegel, 7 Pa. 241. The authorities all
recognize that the acceptance of the devise is a condition precedent
to any personal liability on the part of the devisee for legacies or
debts. And if the land is sold under order of court to pay debts,
the devisee has no personal liability, although he had taken pro
forma possession: Carpenter v. Carpenter, 14 N. Y. St. 284. Said
the court in this case: "All the cases reported, holding the devisee
liable for the payment of the debts and legacies upon accepting the
devise cum onere, are where the proof showed that the devisee had
taken and appropriated the subject of the devise, had the full bene-
fit of it, and had not been interfered with in the enjoyment of it.
There is no case holding that when the devisee had taken pro forma
possession of the thing devised, but was in turn evicted and the
property taken away to meet the lawful demands of the estate,
by lawful proceedings in settlement of the estate, that nevertheless
the devisee, although foiled in his attempt to get the benefit of the
devise, was held liable to pay the debts and legacies."
Value of Devise. — The general rule is that the personal liability
of a devisee for the payment of legacies charged by the testator is ab-
solute, upon acceptance of the devise, whether or not the land devised
is adequate for their payment. By accepting the devise the legacies
become the personal debt of the devisee, which he must pay, although
the property devised to him is of less value than the legacies: Will-
iams v. Nichol, 47 Ark. 254, 1 S. W. 243; Porter v. Jackson, 95 Ind.
210, 48 Am. Eep. 704; Spencer v. Spencer, 4 Md. Ch. 456; Brown v.
Knapp, 79 N. Y. 136; Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625. In
Glen v. Fisher, 6 Johns. Ch. 33, 10 Am. Dec. 310, it was held that
a devisee had no right to require of the legatee, before payment, se-
curity to refund in case of a deficiency of assets to pay debts. In
Dunham v. Deraismes, 166 N. Y. 607, 59 N. E. 903, it is held that
when a legacy is charged on all the land devised, a devisee of part of
the land becomes personally liable, upon accepting the devise, for
only his proportionate share of the legacy.
Death of Devisee. — In the event of the death of a devisee on
whose devise the payment of a legacy was a charge, it would seem
that the devised estate would still remain subject to the liability for
the payment of the legacy: Mitchell v. Mitchell, 3 Md. Ch. 71. In
Case v. Hall, 52 Ohio St. 24, 38 N. E. 618, 25 L. B. A. 766, it is held
■122 Coffey's Probate Decisions, Vol. 5.
that where land is devised in fee, with directions to the devisee to
pay certain legacies as each legatee attains the age of twenty-one
years the devisee, on accepting the devise, becomes personally liable
to pay the same as directed by the testator; and where the devisee
dies before all the legatees attain the requisite age, his estate, as an
entirety, remains liable to such as thereafter become of age, and it
is the duty of his administrator to pay the same. And in Stringer
v. Gamble, 155 Mich. 295, 118 N. W. 979, where a man devised a
farm on condition that the devisee should pay an annuity to the
widow for life and furnish certain products from the farm, secured
by a lien thereon, it is held that the devisee takes the property
charged with the conditions imposed, and is personally liable to per-
form them as upon a contract, express or implied, that the land is
charged with the performance thereof during the life of the annuitant,
and that the estate of the devisee after his death is liable for past
due payments which are not barred. If accepting the devise is re-
garded as an implied promise to pay the legacy, then an action lies
against the executor or administrator of the devisee for any breach
of the contract in his lifetime: Pickering v. Pickering, 15 N. H. 281;
Shannon v. Howell, 36 Hun, 47.
Conveyance of Devised Land. — When the devisee conveys the
land subject to the charge, the vendee, it is said, stands, in respect
of personal liability for the legacy, much like one who purchases
mortgaged premises subject to the mortgage, who does not become
personally liable for the mortgage debt without a contract of assump-
tion evidenced in some way, though no particular form of words is
necessary to create such liability: Hodges v. Phelps, 65 Vt. 303, 26
Atl. 625. In this case it was decided that persons acquiring title
by quitclaim to devised land took with notice of provisions in the
will charging the land with a legaey, and were personally liable for
the full amount of the legacy without regard to the value of the
land; they were held liable also because by the terms of the deed,
they assumed the payment of the legacy and promised to pay it
according to the provisions of the will. The personal liability of a
grantee of the property to the legatee seems to be recognized in An-
il rews v. Sparhawk, 30 Mass. (13 Pick.) 393; Phillips v. Humphrey,
42 N. C. 206. In Bird v. Stout, 40 W. Va. 43, 20 S. E. 852, it is held
that where a will charges with a legacy land devised to a person
who conveys it to a third person, and the latter retains in his hands
of the purchase money a sum to pay the Legacy, promising his
to pay it, the grantor may maintain a bill in equity against
the grantee, making the legatees parties, to compel the payment of
Bach fund on the legacy and to enforce the charge on the land. It
i-i clear that when land is charged with payment of a legacy, it re-
mains subject to the charge when conveyed to a purchaser with notice,
ial or constructive, until the legaey is paid: Wilson v. Piper, 77
In J t.'.T; (jardenville IYrmanent Loan Assn. v. Walker, 52 Md. 452;
Estate of Lannon. 423
Pickering v. Pickering, 15 N. H. 281; Copp v. Hersey, 31 N. H. 317;
Hoyt v. Hoyt, 17 Hun, 192, affirmed in 85 N. Y. 142; Nellons v.
Truax, 6 Ohio St. 97; Appeal of Steele, 47 Pa. 437; Scott v. Patchin,
54 Vt. 253.
Manner of Enforcing Liability.
In Equity — Sale of Land. — Equity will entertain a suit to com-
pel a devisee to pay a legacy for which he is personally liable, and
will enforce its decree by a sale of the land devised: Williams v.
Nichol, 47 Ark. 254, 1 S. W. 243; Mahar v. O'Hara, 9 111. 424; Cor-
nish v. Willson, 6 Gill, 299; Sherman v. Sherman, 86 Mass. (4 Allen)
392; Horning v. Wiederspalen, 28 N. J. E. 387; Degraw v. Clason,
11 Paige, 136; Collister v. Fassitt, 163 N. Y. 281, 78 Am. St. Rep.
586, 57 N. E. 490; Dunning v. Dunning, 82 Hun, 462, 31 N. Y. Supp.
719, affirmed in 147 N. Y. 686, 42 N. E. 722; Bird v. Stout, 40 W. Va.
43, 20 S. E. 852. And it is said that the fact that an action at law
will also lie to enforce the liability does not preclude a court of chan-
cery from assuming jurisdiction: Cady v. Cady, 67 Miss. 425, 7 South.
216. Speaking of an annuity made a charge upon real property de-
vised, the New York court said: "It being an express charge thereon,
the devisees, upon accepting the devise, became personally bound
to pay such annuity, and its payment could be enforced by a suit in
equity against the real estate, or by an action against the devisees
upon the promise to pay implied by the acceptance of the devise":
Eedfield v. Redfield, 59 Hun, 620, 12 N. Y. Supp. 831, affirmed in
126 N. Y. 466, 27 N. E. 1032. The Wisconsin court, in the principal
case, recognizes the power of a court to proceed to a foreclosure
sale of the property, in that case a life estate with remainder over,
to satisfy the legacy charged thereon.
At Law — Action of Debt or Assumpsit. — In the early cases there
seemed some doubt as to whether assumpsit would lie against a
devisee to enforce his personal liability for the payment of legacies.
But the theory has prevailed that the acceptance of the devise implies
a promise on the part of the devisee to pay the legacy, and that the
legatee has the right to maintain an action thereon for its nonper-
formance and recover a personal judgment: Porter v. Jackson, 95
Ind. 210, 48 Am. Eep. 704; Stringer v. Gamble, 155 Mich. 295, 118
N. W. 979; Case v. Hall, 52 Ohio St. 24, 38 N. E. 618, 26 L. R. A.
766. That assumpsit will lie to enforce the personal liability of a
devisee to pay legacies charged by the will is recognized in Willis
v. Roberts, 48 Me. 257; Doolittle v. Hilton, 63 Me. 537; Wiggin v.
Wiggin, 43 N. H. 561, 80 Am. Dec. 192; Tole v. Hardy, 6 Cow. 333;
Gridley v. Gridley, 24 N. Y. 130; and that an action of debt will lie
to enforce such liability is recognized in Etter v. Greenawalt, 98 Pa.
422; Renner v. Headley, 129 Pa. 542, 18 Atl. 549. In case the devisee
is also executor, the remedy is nevertheless assumpsit, and not an ac-
tion on his bond: Olmstead v. Brush, 27 Conn. 530. In Red v. Power,
424 Coffey's Probate Decisions, Vol. 5.
69 Miss. 242, 13 South. 586, it is held that where property is devised
with a direction to the devisee to give a certain person $200 a year
as long as he lives, the devisee, upon accepting the provisions of the
will and entering into the enjoyment of the property, becomes the
debtor of the person to whom the money is to be paid, and that the
indebtedness is subject to garnishment.
Limitation of Actions. — The relation between devisee and legatee,
where the devisee is personally liable to the legatee for a legacy
charged by the will, is not a trust relation which prevents the running
of the statute of limitations against an action to enforce the liability.
Thus in Etter v. Greenawalt, 98 Pa. 422, where it is held that an
action of debt will lie against a devisee to compel him to pay a sum
which the will directs him to pay to the plaintiff, it is decided that
the statute of limitations precludes a recovery if more than six years
have elapsed since the death of the testator. And in Merton v.
O'Brien, 117 Wis. 437, 94 N. W. 340, it is held that the devisee of
land, subject to the payment of a legacy charged as a lien thereon,
is not "a trustee of an express trust," and hence that an action by
the legatee to enforce the lien against the property may be barred by
the statute of limitations.
Estate of MARY JANE TURNER, Deceased*
[No. 2,360; decided February 11, 1884.]
Funeral Expenses. — When the Question of Liability for Funeral
Expenses is at issue in a suit to recover them, the probate court will
not entertain a petition that involves an adjudication of the question.
Funeral Expenses. — A Claim for Funeral Expenses must be Pre-
sented as other claims are, and if disallowed be sued upon in the
ordinary way.
Disputed Claims. — The Probate Court is not a Trial Court to Settle
disputed claims.
Drown & Barton, for the petitioner.
Stetson & Houghton, for the administrator.
•The opinion in this case, and the opinions in the cases to follow,
were destroyed in the groat fire that visited San Francisco April 18-
20, l'.iur,. The syllabi, fortunately, were preserved, and are here pre-
sented in full.
Estate of Greenwood. 425
Estate of MARY ANN GREENWOOD, Deceased.
[No. 1,873; decided June 28, 1884.]
Contempt by Attorney. — In Concealing Facts from the Court which
an attorney is bound in candor to communicate, he is wanting in that
respect to courts and judicial officers which it is the duty of an attor-
ney to maintain. Subdivision 2, section 282 of the Code of Civil
Procedure.
Contempt by Attorney.— An Attorney Who, in Seeking to Effect His
Purpose, employs means other than such as are consistent with truth,
and calculated to mislead the judge, through artifice and suppression
of facts essential to be known to the court, is guilty of misbehavior
in his office and of willful violation of duty constituting a contempt
of court. Sections 282, 1209 of the Code of Civil Procedure, subdivi-
sions 4 and 3, respectively.
Contempt by Attorney in Deceiving Court as to Sale of Property. —
Where the attorney for an administrator reports to the court and the
administrator that he has sold property of the estate for a less sum
than he has actually received, converts the difference between the
two amounts to his own use, and obtains a confirmation of the sale
at the sum reported by him, he is guilty of a contempt of court for
which he should be punished.
M. B. Blake, for absent heirs.
J. D. Sullivan, for the administrator.
Calhoun Benham, for J. W. Carter.
426 Coffey's Peobate Decisions, Vol. 5.
Estate op ED "WARD FLAHERTY. Deceased.
[No. 2,79S; decided February 11, 1884.]
Administrator — Nomination by Nonresident Widow. — The second
marriage of a woman who has a husband living is void, and she
becomes his widow upon his death. Hence she has a right to nom-
inate an administrator of his estate, although she is a nonresident and
is cohabiting with and bearing the name of the second husband.
Wright & Cormac, for the public administrator.
C. W. Bryant, for Kimball.
J. E. Jarrett, for the widow.
George N. Williams, for Patrick Flaherty.
A. H. Loughborough, for absent heirs.
Estate of THOMAS FALLON, Deceased.
[No. 4,716; decided 1886.]
Will. — A Request to Sign a Will as Witness may be express or im-
plied; anything that conveys to a person the idea that the testator
desires him to be a witness is a good request.
Will. — An Attesting Clause is not Essential to the validity of a
will, beyond the fact that the witnesses signed as such.
Will. — A Person may be of Sound and Disposing Mind who is
capable of fairly and rationally considering the character and Bense
of his property, the persons to whom he is bound by ties of blood,
affinity or friendship, or who have claims upon him, and the persons
to whom and the manner and proportions in which he wishes the
property to go.
Will. — Weakness of Mind is not the Opposite of Unsoundness, but
igth of mind, and unsoundness is the opposite of soundness;
hence a weak mind may be sound and a strong mind unsound.
Will. — It is not the Weakness or Strcnjrth of Mind which deter-
mines its tpstamrnt.iry capacity, but itSBOundnesfl — that is, its healthy
condition and action.
Estate of Fallon. 427
Will. — Partial Insanity or Monomania does not Affect Testamentary
capacity in general, but only as to the persons or subjects in regard
to •which the unsoundness exists.
Will. — Monomania Consists in a Mental or Moral Perversion in re-
gard to some particular subject or class of subjects, while in regard
to others the person seems to have no such morbid affection.
A Will Which is the Direct Offspring of Monomania or Partial In-
sanity should be regarded as invalid, although the general capacity of
the testator is unimpeached.
Will. — Undue Influence Consists in the Use by One in whom a con-
fidence is reposed by another, or who holds a real or apparent author-
ity over him, of such confidence or authority for the purpose of ob-
taining an unfair advantage ever him; in taking an unfair advantage
of another's weakness of mind, or in taking a grossly oppressive or
unfair advantage of his necessities or distress.
Will. — Undue Influence is that Kind of Influence which prevents the
testator from exercising his own judgment and substitutes in the
place thereof the judgment of another.
Will. — Undue Influence is Entirely Distinct from Unsoundness of
mind.
Will. — Circumvention by Means of Fraud is considered in the same
light as constraint by force, and has the same effect in vitiating
a will.
Jury. — A Jury Exercises a Judicial Function, and Its Verdict must
be based purely upon the evidence submitted to it under the instruc-
tions of the court.
Jury. — Any Statement by the Court Affecting the Weight of Testi-
mony or the credibility of a witness, or any matter within the prov-
ince of the jury, should be disregarded by the jurors and banished
from their minds.
Trial. — One having the Burden of Proof is not Relieved Therefrom
by the anticipation of his case by the opposing party with negative
averments.
James L. Crittenden, for the contestants.
William Matthews, for the proponent.
Daniel Titus, for the minors.
428 Coffey's Probate Decisions, Vol. 5.
Estate of HENRY WOLTERS, Deceased.
[No. 17,941; decided October 21, 1S97.]
Executor — Whether may Purchase at His Own Sale. — Section 1576
of the Code of Civil Procedure does not prevent an executor, with
the permission of the court, from purchasing at his own sale.
Executor — Whether may Purchase at His Own Sale. — Section 1576
of the Code of Civil Procedure, which prohibits an executor from
purchasing at his own sale, is to be construed as was the rule in
equity which it enacts.
Probate Court — Equity Jurisdiction. — A superior court sitting in
probate may, in a proper case, exercise its equity powers.
Application by George Wolters, an executor, to purchase
land at his own sale.
Estate of WILLIAM BROWN, Deceased.
[No. 15,9S3; decided 1899.]
Wills — Due Execution — Evidence of Scrivener's Experience. — On the
issue of due execution of a will, the testimony of an attesting witness
who drew the instrument that he has had experience in drawing wills
is admissible.
Wills — Competency of Testator — Evidence. — On the issues of men-
tal competency of a testator and undue influence in the execution of
his will, evidence of the pecuniary circumstances of a legatee and of
her husband is inadmissible.
Will— Failure of Memory of Witness. — The fact that an attesting
witness to a will cannot remember the details of the transaction does
not cast a cloud upon the due execution of the instrument established
by other direct evidence and circumstances.
Will — Competency of Testator — Age and Physical Infirmities. — Evi-
dence of the advanced age of a testator and of his physical infirmi-
ti<!», if they did not impair the operation of his mind in the making
of his will, does not establish testamentary incapacity.
Petition by Sarah J. Brown et al. to revoke the probate
"f the will of William Brown. On the trial of the issue of
Estate of Callaghan. 429
due execution of the will, the testimony of Mr. Sonntag, who
was the scrivener and also an attesting witness, that he had
had experience in drawing wills, was stricken out of the rec-
ord ; and on the issue of undue influence by Mrs. Talf ord, a
legatee, on the testamentary act, evidence of the pecuniary
circumstances of herself and husband was admitted. The
present decision is on a motion for a new trial.
Estate of ANN CALLAGHAN, Deceased.
[No. 16,170; decided August, 1897.]
Devise to Executor in Trust by Implication. — Devises of land to
executors in trust, by implication, are not favored, and are tolerated
only where the probability of the testator's intention to that effect
is so strong that a contrary presumption cannot be entertained.
Devise — Invalid Trust — Restraint on Alienation. — Where a testa-
trix, after describing certain real estate, states, "I have great faith
in the future value of said piece of property, and my desire is that
my share in it shall not be sold until it is absolutely necessary so to
do," and then adds, "When said land is sold, a sum equal to sixty
thousand dollars shall be invested by my executors in bonds or divi-
dend stocks or loans secured by good mortgages, and the net income
received therefrom shall be distributed as above directed," such pro-
visions are bad as a trust in the land, and as a power in trust, and
as in restraint of alienation.
430 Coffey's Probate Decisions, Vol. 5.
Estate of ANN CALLAGHAN, Deceased.
[No. 16,170; decided August, 1897.]
Probate Court — Jurisdiction to Try Title. — The superior court, sit-
ting in probate, has no jurisdiction to determine questions of title to
real estate.
Will— Omission of Child, What is. — The words, "when any testator
omits to provide in his will for any of his children," as used in sec-
tion 1307 of the Civil Code, mean: "When a testator says nothing of
a provision," or "does not insert a provision," or "fails or neglects to
speak of a provision for any of his children."
Will — Omission of Child, What is not. — A testatrix does not omit
to provide for her child, so that it will inherit under section 1307 of
the Civil Code, when she devises to it land to which her title is im-
perfect, or to which she has no title at all.
Will — Omission of Child — Extrinsic Evidence. — Courts will not look
to matters dehors a will to ascertain that the omission to provide for
a child is unintentional.
Estate of Callaghan was before the supreme court in 119 Cal. 571,.
51 Pac. 860, 39 L. E. A. 689.
Estate of MARY CLANCY, Deceased.
[No. 17,292; decided August 31, 1898.]
Separate Property of Wife — Admissions of Husband. — Where it ap-
pears that the purchase price of real estate was paid from the sep-
arate property of a married woman, and the deed was taken in her
oame, mid tin husband, upon her death, avers in his petition for let-
ters of administration that such property was the separate property
of the decedent, and swears to the same effect on the hearing of the
petition, and also in the inventory and appraisement, his admissions
win n unexplained, conclusive of the character of the property.
Separate Property of Wife — Expenditures by Husband. — A husband
cannot recover payments voluntarily made by him for repairs, im-
provements, and the like on the separate property of his wife, nor
can he, by making advances for the benefit of such property, acquire
any Interest therein.
Estate of Caffrey. 431
Estate of TIMOTHY CAFFREY, Deceased.
[No. 17,772; decided November, 1898.]
Computation of Time — Fractions of Days. — In the legal computation
of time there are no fractions of a day, and the day on which an ac-
tion is done must be entirely excluded or included.
Computation of Time — First and Last Days. — The time in which an
act provided by law is to be done is computed by excluding the first
day and including the last.
Computation of Time — Service of Citation. — A citation served on
the defendants September 3d, and requiring them to appear at ten
o'clock A. M. on SeptemberSth, is sufficient under section 1711 of the
Code of Civil Procedure, which declares that citations must be served
at least five days before the return day thereof. The statute does not
require the lapse of five full days between the day of service and the
day of appearance.
Estate of MARY A. CLUTE, Deceased.
[No. 19,516; decided May 31, 1899.]
Administrator's Account — Trustee in Bankruptcy may Contest. — A
trustee in bankruptcy of an heir has the right to contest an account
of the administrator of the decedent.
Estate of THOMAS CORNELL, Deceased.
[No. 18,119; decided January 14, 1898.]
Nonresident Intestate — Distribution of Estate. — If a resident of
Nevada dies there intestate, leaving personal property in California,
leaving creditors in Nevada but none in California, and leaving no
heirs in either state, though perhaps some in Canada, the California
courts will, in a spirit of comity, direct the residue of the property
in that state, after the payment of expenses of local administration, to
be paid over to the domiciliary administrator in Nevada, instead of
making a distribution.
432 Coffey's Probate Decisions, Vol. 5.
Estate of FRANZ H. FRETZ, Deceased.
[No. 18,676; decided August 22, 1898.]
Inheritance Tax — Benevolent Society. — The German Benevolent
Society of San Francisco is not subject to a collateral inheritance tax.
Estate of LOUISA C. GOFF, Deceased.
[No. 20,255; decided April 12, 1897.]
Witnesses — Competency of Husband and Wife. — Subdivision 1 of
section 1881 of the Code of Civil Procedure, in disqualifying husband
and wife to testify for or against each other, is a declaration of the
common law.
Witnesses — Competency of Husband and Wife. — In furtherance of
justice and for the purpose of exposing fraud, courts are inclined to
relax the rule that husband and wife are disqualified to testify for or
against each other.
Witnesses — Competency of Husband and Wife. — When the executor
and proponent of a will is made the defendant in a contest thereof,
he and his wife, she being the sole beneficiary under the will, may not
refuse to testify because of the relation of husband and wife.
Estate of EDWARD D. HEATLEY. Deceased.
[No. 13,828; decided September 27, 1897.]
Will — Revocation by Incomplete Instrument. — A will is not revoked
by an unsigned olographic document of later date.
Will— Revocation by Alterations. — Where a testator changes many,
though not all, of the provisions of his will by pencil marks and inter-
lineations, but allows his signature and the signatures of the wit-
to stand untouched, the revocation of the instrument is not
thereby affected.
Estate of Heatley. 433
Estate of EDWARD D. HEATLEY, Deceased.
[No. 18,828; decided July 24, 1897.]
Olographic Will — Insufficient Signature. — The fact that a testamen-
tary paper is commenced and also indorsed in the handwriting of the
testator, "This is my Will," is unavailing to constitute it an olo-
graphic will if not signed.
Olographic Will — Insufficient Signature. — A testamentary instru-
ment in the handwriting of the testator, not having any signature,
but containing the testator's name in an unwitnessed attestation
clause, cannot be given effect as an olographic will.
Olographic Will — Attestation Clause. — If one makes a will entirely
in his own handwriting, does not sign it, and attaches an attestation
clause unsubscribed by witnesses, the presumption is that he intends
to acknowledge and publish it in the presence of witnesses, and it is
therefore incomplete as a testamentary paper.
Estate of EMMET M. HICKEY, Deceased.
[No. 17,388; decided February 15, 1897.]
Administrator's Account — Vacation of Settlement — Affidavit of
Merits. — An affidavit of merits is not indispensable upon an applica-
tion to set aside an order and decree settling an administrator's ac-
count, because taken against minors through their inadvertence and
ex 
