Volume 1 — Coffey's California Probate Decisions (1880–1915)

The executor did not qualify for his trust, but renounced his right to letters upon or before the hearing of the petition; and this was a direct application to the court by the attorneys so employed by him. The administrator with the will annexed demurred to the application, and the following decision was given on the demurrer.

<p>Guardianship—Custody and Welfare of Child.—In appointing a guardian and awarding the custody of a child, the court is bound to do what in its judgment appears to be for the best interest of the child in respect to its temporal, its mental and moral welfare.</p> <p>Guardianship.—The Affection of a Child for the Person seeking its custody as guardian is always given consideration by the court.</p> <p>Guardianship—Social and Private Life of Guardian.—It is the duty of the court to inquire into the social relations and private life of a person seeking to be appointed guardian of a child, so far as they may affect the child’s welfare.</p> <p>Evidence—Inference from Failure to Produce.—The failure of a party to produce evidence within his power to produce is a circumstance to be taken against him.</p> <p>Record.—Matters Prejudicial to the Character of any person will be excluded from the record when not essential to a proper decision.</p>

<p>Charitable Bequest—Necessity of Naming Corporation.—A charitable institution which is made a residuary legatee need not be designated in the will by its corporate name.</p> <p>Charitable Bequest—Evidence to Identify Beneficiary.—If either from the will itself or from extrinsic evidence the object of a charitable bequest can be ascertained, the court will not invalidate the gift or defeat the donor’s intention.</p> <p>Charitable Bequest—Ascertainment of Beneficiary.—A residuary bequest to “The Old Ladies’ Home, at present near Bincon Hill, at St. Mary’s Hospital,” is held to have been intended for the “Sisters of Mercy,” a corporation embracing, as part of its charitable design, the “Old Ladies’ Home.”</p> <p>Executor—Compensation Fixed by Will.—When an estate is solvent, the compensation of the executor, fixed by the will in lieu of statutory commissions, should be paid as “expenses of administration.”</p> <p>Charitable Bequests, so Far as They Exceed One-third the distributable estate, are void.</p>

<p>Daniel T. Murphy died on June 3, 1885, in the city of New York, of which place he was a resident at the time of his death, leaving an estate in San Francisco, California. He left a will, bearing date May 15, 1883, and two codicils, dated respectively May 18, 1885, and May 23, 1885.</p> <p>On the eighth day of June, 1885, the will and codicils were filed, together with a petition for their probate, and for the appointment of John T. Doyle and Adam Grant, two of the nominees of the testator, as executors. The applications were granted on June 19, 1885, and the executors named duly qualified.</p> <p>On November 6, 1885, John T. Doyle tendered his resignation as one of the executors, and, after the settlement of his account, he was discharged; Adam Grant continuing as sole executor.</p> <p>During his lifetime Mr. Murphy began the erection of a building of great value on the corner of McAllister, Jones and Market streets in San Francisco, the lower floors of which it was intended should be occupied by the firm of Murphy, Grant & Co., a wholesale house of which he was a member, as a retail store. Shortly before Mr. Murphy’s death, however, one of the members of the firm mentioned died, and Mr. Murphy being seriously ill in May, 1885, and this building being then still unfinished, and the purpose of the firm to occupy it having been abandoned, the decedent executed the codicil of May 18, 1885, in which he gave his executors the power to complete the building, and to modify the original plans, if necessary, and also to lease it for the term of five years.</p> <p>Mr. Grant, as sole remaining executor, leased the lower portion of the building, first the western, and then also the eastern part, to the firm of J. J. O’Brien & Co., for five years, and covenanted for the fitting up of the premises to suit the purposes of the business of the tenants. Upon the representations of the executors as to the advantages to be derived from the lease, the devisees of the property joined in it for a further period of five years. The executor also represented to the heirs that the expense of altering the premises for the use of J. J. O’Brien & Co. would not exceed $12,000 (instead of that it amounted to over $20,000) and that the expense of fitting up a “parlor” would not exceed more than $4,000.</p> <p>Previous to the execution of this lease negotiations were pending with other persons for the leasing of the premises upon terms which some of the heirs thought more advantageous, but acting upon the representations, among others, of the executor (who was a member of decedent’s firm, which firm was in the same line of business at wholesale as that of J. J. O’Brien & Co. at retail), that the firm, in which the estate had an interest, would profit thereby, the lessors closed the transaction with Mr. O’Brien.</p> <p>The executor, thereafter finding that his position as such conflicted with his interest as a surviving partner in the firm of Murphy, Grant & Co., filed his account and tendered his resignation.</p> <p>During the negotiations for the O’Brien lease Mr. Grant intimated to the heirs that he would charge no commissions as executor.</p> <p>The heirs contested the items of his account relating to the fitting up of the leased premises, claiming that the lease was invalid, on the grounds that better terms could have been obtained from other parties, and that the executor was bound to the highest degree of care, diligence and prudence; also, that the expenses of fitting up the premises for the occupation of J. J. O’Brien & Co. were too high, and the improvements made for their benefit unusual on the part of a landlord, and not “fixtures”; that the expenses were much greater than the executor had represented to the heirs that they would be, and that he misrepresented certain facts to them; further, that as a member of the firm of Murphy, Grant & Co., the executor was interested in giving Mr. O’Brien the preference, and that as remaining executor he had no power to execute the first five years lease alone.</p> <p>It was also claimed that he had waived his commissions as executor, which he asked to be allowed him in his account, which waiver was one of the inducements to the heirs for entering into the lease.</p> <p>It also appeared that the executor had withdrawn the sum of $100,000 from the capital account of Murphy, Grant & Co., and out of the same had paid a debt of the estate of some fifty-odd thousand dollars owing to Donohue, Kelly & Co., and had deposited the balance with' these bankers, where it was lying idle, and the heirs sought to charge him with interest on this balance.</p>

Lena Fleishman died on November 16, 1891, leaving a husband and two brothers. On December 5, 1891, a petition was filed by the husband for the probate of a will dated November 15, 1891. On December 23, 1891, the brothers filed written grounds of opposition to the probate of the will. The grounds of contest appear from the opinion of the court.

<p>Application for final distribution.</p>

<p>Application by creditor to revoke the probate of a will.</p>

This was a contest filed to an application for the probate of a document, presented as the last will of Jacob Solomon, deceased. The will and a petition for the admission to probate were filed on January 6, 1885, by Lazarus Solomon, named in the instrument as executor. On the eleventh day of February, 1885, there was filed the written contest (as amended) of Jennie Asch, the person referred to by testator in the seventh clause of his will, hereinafter given.

<p>Letters of Administration.—The Order in Which Letters of administration are granted is a matter of statutory regulation, and to the statute the court must resort for decision.</p> <p>Succession—Vesting of Estate in Heirs.—Heirs succeed to the property of their intestate immediately upon his death; then their interest becomes vested, subject only to the lien of the administrator for the payment of the debts of the decedent and the expenses of administration.</p> <p>Succession.—The Next of Kin Entitled to Share in the Distribution of the estate of an intestate are such only as are next of kin at the time of his death.</p> <p>Letters of Administration —Next of Kin.—Where a man dies intestate, and subsequently his widow dies before letters are taken out on his estate, her niece is not entitled to administer his estate as next of kin, for she was not such when he died.</p>

<p>Jurisdiction—Residence of Deceased.—The Issuance of Special Letters of administration to the public administrator in one county is not a final determination of his right to general letters of administration as against the public administrator of another county.</p> <p>Jurisdiction—Residence of Deceased.—The Issuance of Special Letters of administration leaves the jurisdictional facts still to be ascertained prior to the issuance of general letters.</p> <p>Jurisdiction—Residence of Deceased—Conclusiveness of Determination.—Where the public administrators of two counties each file an application for letters of administration, there being a doubt as to which county the decedent was a resident of, and one applicant contests the application of the other, the adjudication of the court that it has jurisdiction is a bar to the contestant's own application in the other county.</p>

This was a contest between two applicants for letters of administration, one being the nominee of the decedent’s widow, who had remarried, and the other the public administrator of San Francisco, Philip A. Roach.

This was an application by the administrator to confirm a private sale of realty returned by him. The application was opposed by the purchaser.

This was an application for the settlement of an account filed by executor, Selden S. Wright. A contest was filed on the part of Estelle L. Dudley, a daughter of testatrix, and also a grantee under a certain deed made by testatrix shortly before her death, which deed was the subject matter of the suit brought by the executor, referred to in the opinion of the court.

This was a contest to the settlement of the account of the special administrator.

This was an application by the father of Annie Murphy, a minor, to be appointed her guardian. Mary Murphy, the mother of the child, contested the application. It appeared that in an action for divorce, pending between the petitioner and contestant, in department 8 of the superior court of San Francisco, the custody of the child had been awarded to the contestant.

David McDougal died on August 7, 1882, in San Francisco, a resident thereof, leaving a last will wherein his wife, Caroline M. McDougal, was named as executrix.

This was an application by John C. Burch, who was the appointee of the court to represent absent and other heirs, for an allowance of $1,750 on account of services performed under his appointment. After overruling a demurrer to the petition, the matter was sent to a referee for adjustment, and was reported back for allowance. The referee’s ruling was excepted to, and the opinion below was rendered on a review of the report of the referee, Mr. A. H. Loughborough.

This was a demurrer to an application by Jno. C. Burch, appointed by the court to represent absent and unrepresented heirs, for an allowance of $1,750, on account of services performed by him under the appointment. It was claimed that such an allowance could not be granted during the administration—not until distribution of the estate; hence the demurrer.

Ann Fitzpatrick, a married woman, died intestate, on May 27, 1883, in San Francisco, a resident thereof, leaving separate estate therein. She left a surviving husband, Patrick D. Fitzpatrick, and also a sister named Bridget Curley, as her heirs. Letters of administration were duly issued to the surviving husband on July 19, 1883. On March 26, 1885, the administrator filed his final account, which contained an item of $284 for the funeral expenses of his deceased wife.

Wm. H. Wallace died intestate in San Francisco, on October 2, 1881. On October 24, 1881, letters of administration were duly issued to his widow, Emeline Wallace. He left him surviving, as his heirs, his widow and two children, Cora A. and Wm. H. Wallace, Jr., the latter a minor. Mrs. Wallace was also appointed guardian of her minor son.

<p>There was a contest arising upon objections to the settlement of the first annual account of the executor. Mr. Carroll Cook, as executor, filed his first annual account on September 13, 1886, and upon the twenty-seventh day of September, 1886, written objections were filed by Frances H. Lowndes (a sister of the above-named testatrix) in her own right as an heir, and also as guardian' of the person and estate of Theodora Lowndes, a minor, a party interested in the estate of said decedent. After sustaining, as to one point, a demurrer to the objections (on October 8, 1886), the hearing was had, extending over a considerable period of time; final argument being heard on March 24, 1887. Such statement of the objections and items of the account referred to in the opinion is here made, as is considered to be helpful to a more complete understanding of the judge’s decision.</p> <p>As to the first objections considered, respecting certain telegrams, it appeared that the executor was absent from San Francisco, and telegraphed certain instructions respecting affairs of the estate. As to the amount paid Josiah Cook, an attorney at Buffalo, it appeared that at the time of deeedent’s death a certain suit began in New York state was pending against her, and, in answer to a telegram from relatives of decedent’s family, the executor went on to New York in the belief that some immediate necessity existed for the sending of the telegram, which called for his prompt appearance in New York. For the contestants to the account, it was urged that no necessity of attention could arise with respect to that suit or matters involved in it, because the suit suspended by decedent’s death, and could only be revived by instituting an administrator in New York, and having him substituted in the suit; furthermore, the whole matter of the suit was beyond the jurisdiction of this court, and the forum of this administration, and so no part of the executor’s duty. The court took the view, however, that the executor should be protected in his action, it having been taken in good faith, although under an erroneous impression of the law.</p> <p>The items of moneys paid O’Beirne and Jewett, and disallowed by the judge, deserve attention, as they involve an erroneous impression on the part of the executor, not so uncommon, perhaps, in probate proceedings, as might be wished on the part of the court, who is often left to pick out objectionable items of a like character without any help from observing counsel in opposing interests.</p> <p>The item of $2 paid O’Beirne was for making a “fair copy” of the executor’s account; the item of $5.50 for copying the executor’s amendments to a certain statement on appeal; and the item of $16, for copying the inventory filed in the estate and a brief presented to the judge. The item of $34 paid J ewett was for making a copy of all proceedings and papers of record in the administration, which copy the executor wanted for his convenience.</p> <p>The rejection of these items was, as stated in the headnote, on the ground that the subject matter was within the line of the executor’s duty, and so was covered by the compensation and commissions provided by law. If, e. g., it was part of the executor’s duty to file an account, he could not make a charge for moneys paid in engrossing that; neither could he ask the estate to pay for any copy thereof he should desire to keep; all these items disallowed are upon this legal ground.</p> <p>The facts as to all other items objected to are sufficiently stated in the opinion of the court.</p> <p>The legal propositions contained in the second, fifth, sixth, eleventh and twelfth headnotes were previously announced January 7, 1886, in a decision delivered in the same estate, upon the settlement of the executor’s final account in the special administration, reported ante as Estate of Shillaber (No. 1).</p>

The above-named decedent left certain real property in Napa county. Two days before his death he entered into what he supposed to be a valid marriage with a woman who called herself Miss Elena Donnelly. After his death a sister of the deceased claimed that Miss Donnelly had a husband living at the time she entered into the pretended marriage with decedent, and that in consequence such marriage was void.

<p>Marital Obligation—Filial Devotion.—A husband should not allow the duty he owes to his wife to be overcome by his love for his parents. Where one’s marital obligation comes into conflict with his filial devotion, the latter should give way to the former.</p> <p>Guardianship.—Assuming that a Father’s Eight to the Custody of his child revives upon the death of the mother, who had been awarded the custody under a divorce decree, yet it must be shown that the minor’s interest will be conserved by recognizing the father’s right.</p> <p>Guardianship.—Where a Husband Deserts His Wife, who is left to care and provide for their infant child, this will be considered as an abandonment of the child, upon the father’s application for guardianship after the mother’s death.</p> <p>Guardianship.—Eeluctant as the Court Always is to Interfere with a Father’s natural right to his child’s custody, it will do so where the child's interest demands.</p> <p>Guardianship.—In the Case at Bar the Court Refused Guardianship of a minor of divorced parents to its father, applying after the death of the mother, and granted letters to the maternal grandmother of the minor, for the following reasons: The child had been awarded to the mother by a divorce decree against the father; the father never provided for the child, except when compelled by judicial process; he never showed any interest in the child from the time of his desertion of the mother, and by his continued course of conduct manifested a lack of paternal instinct; the maternal grandmother had received the mother and child when deserted by the father, and had ever afterward given them shelter and assistance, and she was the nominee of the mother, by the latter’s dying request.</p>

<p>Nicholas Treweek died in San Francisco on December 30, 1882, leaving an olographic will dated April 2, 1882, in which he made his brothers, Francis, John and George Treweek, and his sisters, Jane Treweek and Elizabeth West, his legatees and devisees. The same persons were his heirs.</p> <p>To his brother Francis he left the sum of $5,000, and to each of his other brothers and sisters $2,500, making in all $15,000. He also made all his brothers and sisters his residuary legatees and devisees, share and share alike.</p> <p>In this will the testator also named Arthur W. Bowman executor.</p> <p>On January 6, 1883, Mr. Bowman filed the will, together with a petition for its probate, and for letters testamentary.</p> <p>The petitioner stated the probable value and character of the property of the estate to "be about the sum of $15,000 in money in his hands, and certain stocks and real property.</p> <p>■ On January 24, 1883, the will was duly admitted to probate, and the petitioner appointed executor, and letters were issued to him on the 29th of the same month.</p> <p>An inventory and appraisement was filed in the estate on September 4, 1883, in which the executor stated that part of the estate consisted of about the sum of $16,775.23 in money in his hands.</p> <p>On January 3, 1884, the executor filed his final account, and a petition for final distribution in accordance with the will.</p> <p>In this account he stated the balance of moneys in his hands to be $15,000.</p> <p>The account was settled, and decree of distribution made as prayed for on January 15, 1884.</p> <p>On June 15, 1885, Lovell Squire, Jr., filed a verified petition reciting the facts above stated, and also alleging that he was the attorney in fact of the distributees; that he had, as such, made demand upon the executor for the sum of $15,000, in accordance with the decree of distribution, and that he had refused to pay, giving as his only ground of refusal that he did not have the money; Mr. Squire therefore prayed that an order be made requiring the executor to show cause why he should not pay the money, or be punished for contempt for his failure to do so.</p> <p>The order to show cause was made, and citation issued thereon.</p> <p>On July 22, 1885, the executor filed his answer to this petition. He stated in his answer that at the time of the testator’s death he, Bowman, owed the sum of $15,000 to the testator for moneys loaned; that in his petition for probate he alluded to said moneys as moneys in his hands, but as a matter of fact there were no moneys of the estate in his hands, although he was at that time amply able to pay the debt; that after his appointment as executor, the matter remained in precisely the same condition, to-wit: as a debt, he having made no segregation of his moneys, or set any apart to the estate in payment of the debt; that at the time of the distribution the distributees were absent from the state of California,. and respondent did not know that they had an agent in this state, and if they had been here he would have paid them out of his general resources; that on October 27, 1884, a petition was filed in the superior court of Alameda county by certain of his creditors, to have him declared an insolvent, and that on November 10, 1884, he was adjudicated an insolvent, and one Wm. Thomas was appointed his assignee; that his estate was worth at least $100,000, and the insolvency proceedings were still pending; and since the filing of the petition in insolvency he had no moneys in his hands, and that his whole estate was in the hands of his assignee; that it was impossible for him, respondent, to comply with the decree of distribution, and that this impossibility was the only reason for his failure to comply, and he intended no contempt of or disrespect to the court.</p> <p>To this answer a general demurrer was filed by the petitioner, which was sustained on November 11, 1885, with leave to respondent to amend within ten days thereafter.</p> <p>Respondent having declined and failed to amend, he was committed for contempt on November 30, 1885.</p>

<p>Richard Tybout Maxwell died in San Francisco on June 29, 1883.</p> <p>He left an olographic will, bearing date July 23, 1882. Daniel Rogers and Charles Ashton were therein named as executors, and upon petition filed on July 5, 1883, and due proceedings had, the will was admitted to probate and the executors named appointed, and letters testamentary issued to them on July 17, 1883.</p> <p>In the petition for probate the executors stated that on" June 27, 1883, the testator intermarried with Miss Nellie Donnelly, who was the principal devisee in the will.</p> <p>On November 5, 1884, the executors filed their final account and a petition for distribution, in accordance with the terms of the will.</p> <p>On November 13, 1884, Mrs. Elizabeth C. Tybout, sister of deceased, filed certain exceptions to the petition of the executors for distribution, and asked that distribution be made to her as sole heir at law.</p> <p>She alleged that all provisions in the will in favor of Miss Donnelly were made by the testator upon Miss Donnelly’s false and fraudulent representations, knowingly made to the testator, that she was an unmarried woman and capable of entering into a valid contract of marriage with him, and in view of such marriage being entered into.</p> <p>That as a matter of fact, however, the so-called Miss Donnelly was, on August 31, 1880, married in Alameda county to one Charles H. Keane, and is still his lawful wife.</p> <p>That the testator never knew this, and, believing the so-called Miss Donnelly’s false and fraudulent representations, made the provisions in her favor; and that on June 27, 1883, she entered into a pretended marriage with the testator, but that she was then the wife of Charles H. Keane, and well knew it, and that her said pretended marriage with testator was void.</p> <p>That up to the time of his death the testator did not know of the fraud that had been practiced upon him, and believed Miss Donnelly to be his wife, and that neither Mrs. Tybout nor the executors had any knowledge or information of the marriage of the so-called Miss Donnelly to Keane, nor of the fraudulent representations, prior to September 8, 1884, more than a year after the probate of the will. '</p> <p>That the marriage with Miss Donnelly was the testator’s sole motive in making her his devisee.</p> <p>Mrs. Tybout therefore asked that the devise to Miss Donnelly be declared void, and that she, Mrs. Tybout, have distribution as sole heir at law of decedent.</p> <p>To these exceptions and petition Miss Donnelly filed a demurrer on November 26, 1884.</p> <p>The principal grounds of demurrer were, that more than one year had elapsed since the probate of the will, and that the time for attacking such probate and said will on any ground had long since elapsed; also that the will cannot be set aside in the mode attempted; further, that the facts stated are insufficient to authorize the court, under any circumstances, to disregard or refuse to the terms of the will, or to the order admitting it to probate, full force and effect, and that they are no longer open to attack in any proceeding.</p> <p>This demurrer was sustained on December 1, 1884.</p>

<p>Application to confine Mrs. Hannah W. Ingram, an alleged insane person, in the insane asylum.</p>

The opinion of the court in this case was rendered upon objections made to two separate petitions for distribution after the lapse of four months of administration—“partial distribution,” as usually designated.

In this case the record shows the filing of two separate petitions for the guardianship of the above-named minor, Susanna Zimmer. The first application was filed by Mrs. Susanna Smith on October 12, 1883.

<p>Will—Supplying Defects by Implication.—When, from the whole will, the court can determine that the testator necessarily intended an interest to be given, which is not bequeathed by express and formal words, the court should supply the defect by implication, and so mold the testator's language as to carry into effect, as far as possible, the intention which he has in the whole will sufficiently declared.</p> <p>Will—Construction Avoiding Partial Intestacy.—The law prefers a construction of a will which will prevent a partial intestacy, to one which will permit such a result, unless a construction involving partial intestacy is absolutely forced upon the court, for the fact of making a will raises a very strong presumption against any expectation or desire, on the part of the testator, of leaving any portion of his estate beyond the operation of his will.</p> <p>Wills—Construing Parts in Relation to Each Other.—All the parts of a will are to be construed in relation to each other, and so as if possible to form one consistent whole.</p> <p>Will—Contradictory Clauses.—Where several parts of a will are absolutely irreconcilable, the latter part must prevail; but the former of several contradictory clauses is never sacrificed except on the failure of every attempt to give all such a construction as will render every part effective.</p> <p>Will.—When the Meaning of Any Part of a Will is Ambiguous or doubtful, it may be explained by any reference thereto or recital thereof in another part of the will.</p> <p>Will.—The Words of a Will are to be Taken in Their Ordinary and Grammatical Sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained.</p> <p>Will.—The Words of a Will are to Receive an Interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative.</p> <p>Will.—Where a Testator Gives to B a Specific Fund or property at the death of A, and in a subsequent clause disposes of all his property, the combined effect of the several clauses, as to such fund or property, is to vest it in A for life, and after his decease in B.</p> <p>Will.—A Will Consisting of Several Parts, separately executed by the testator, must be considered as a single instrument completed in all its parts at one time.</p>

The opinion of the court in this case was rendered upon a notice of motion to strike out cost bill filed August 28, •1883.

William Lund died intestate in San Francisco, a resident thereof, and leaving estate therein, on the sixth day of April, 1880. He left a surviving wife, Catherine Lund, who, upon petition filed on June 16, 1880, was appointed administratrix of his estate on June 28, 1880, and letters of administration were issued to her on July 6, 1880.

In this ease, on the nineteenth day of July, 1882, Barbara Jennings, the administratrix with the will annexed, filed a petition praying for an order of sale of certain personal property, being the only property of the estate, and designated, “Assessments and contracts for street work done in said city and county (of San Francisco) by said deceased.” And in the petition particularly described there were four contracts set out, upon which there were due the following-amounts,…

In this case the record shows that Robert Stevenson filed an application for letters of special administration upon the twenty-first day of November, 1882, the petition alleging: That decedent, Margaret Armstrong, died at Foxlake, Dodge county, Wisconsin, on October 3, 1882, being then and there resident, and leaving estate in the city and county of San Francisco, within the jurisdiction of the court, consisting of an undivided one-eighth (%) interest in the lot of land (and…

Elizabeth D. Traylor died in San Francisco, a resident thereof and leaving estate therein, on the twenty-first day of October, 1885. She left a last will and testament bearing date July 20, 1885, and a codicil thereto dated September 30, 1885. George W. Prescott, P. N. Lilienthal and Robert Harrison were named therein as executors.

Georgiana Rothschild died in La Porte county, Indiana, a resident thereof, and leaving personal estate in San Francisco, on April 1, 1883.

In the above matter, Caroline A. Taber filed a petition on October 16, 1884, praying to be appointed guardian of the person and estate of the minor, Gertrude A. Smith; setting forth, among other things, that the minor had no guardian appointed by will; that its mother was deceased; that the mother in her lifetime had been divorced from the father of the child, and had been awarded the custody of the minor; and that the only relatives of the minor were the petitioner, who was…

In the matter of the guardianship of the above minor, it appears that letters of guardianship were granted to J. W. Baldwin, on May 13, 1885, after the usual notices required by the statute to relatives within the state (the mother, it would seem, being absent therefrom).

The opinion of the court in this matter was rendered upon two demurrers (considered together) to an amended petition for a partial distribution of the estate. Held: indispensable—attributes; therefore, the statute must be construed as excepting from its provisions an heir or legatee who is at the same time the legal representative of the estate—such heir is under a disability, has a want of capacity, to apply for a partial distribution.

On May 27, 1884, Mary L. Graves filed a petition to be appointed guardian of the person of Willie McGarrity. The petitioner averred that the minor is a resident of San Francisco; that both her parents are dead; that petitioner is the sister of the deceased mother of the minor; that Sarah C. Bachelder is also a sister of the deceased mother, and Thos. F. Conklin a brother. The petition also contained the further necessary averments.

Letters of administration were granted herein to Philip A. Roach, as public administrator, on March 20, 1883. Subsequently Henrietta C. Whalen gave and filed notice of her appearance in the administration, as the surviving wife of the decedent; and thereafter, at the proper stage of the administration, on November 19, 1883, filed her application for a distribution of the estate, claiming a share thereof as the widow of the deceased.

On June 9, 1884, John E. Hammersmith filed his petition for special letters upon the estate of the above-named decedent.

On September 28, 1885, Annie E. Partridge filed an¡ affidavit and petition, the statements in each being the same, viz.: That she was interested in the estate as one of the distributees thereof; that decedent at time of his death owned and possessed certain bonds of the city of Sacramento, of the face value of $25,300 (with interest), and of the actual value of over fifty cents on the dollar; that upon information and belief, the said bonds have, since decedent’s death, been…

<p>Jean Pierre Ricaud died April 1, 1877, in San Francisco, a resident thereof, and leaving estate therein.</p> <p>He left a last will and testament, dated March 26, 1877, in which Francois Larroche and Leon Auradou were named as executors. Upon petition filed by them on April 6, 1877, the will was admitted to probate, and they were appointed executors thereof on April 26, 1877, and letters testamentary were issued to them on April 28, 1877.</p> <p>A part of the estate consisted of a saloon, which the decedent bequeathed to his brother, Michael Ricaud.</p> <p>On May 2,1877, the executors, at the request of this legatee, filed a petition praying for an order of sale of this saloon, on the ground that its chief value consisted in its goodwill, and that unless it could be kept open it would depreciate in value and become worthless, and that its stock of wines and liquors was diminishing by daily sales, and that they did not feel authorized to expend the money of the estate in replenishing it. An order of sale was accordingly made on said day, and the saloon was thereafter sold, with the assent of the legatee, for $2,000, and the sale confirmed by the court.</p> <p>On August 30, 1878, the executors filed their first account, from which it appeared that the saloon had been sold under the order of court for $2,000, and the proceeds paid to the legatee by the executors.</p> <p>On September 13, 1878, Maria Ricaud, the widow of the decedent, filed exceptions to this account, and contested this payment to the legatee, on the ground that the same was unauthorized and illegal, but the question was reserved by the court for future consideration, and the account, with the exception of this item, settled.</p> <p>On August 13, 1883, the executors filed their second account, to which exception was again taken by the widow, on the same ground.</p> <p>The contestant also excepted to the amount claimed by the executors as commissions, the facts in relation to which matter are as follows: There was included in the inventory and appraisement filed in the matter of the estate certain real property valued at $7,500, and commissions were claimed on this amount as part of the estate accounted for.</p> <p>From the account and report of the executors, it appeared that a suit in ejectment had been commenced against the decedent for this property in his lifetime, and that after trial and appeal to the supreme court, subsequently to the death of the testator, the litigation terminated in a final judgment against the estate, and the property was surrendered to the successful parties.</p> <p>The account was settled in accordance with the principles laid down in the following opinion:</p>

James L. Riddle died in Santa Clara county, in this state, but being a resident of San Francisco, and leaving estate therein, on October 8, 1881. He left a will, bearing date February 2, 1881, in which Channing G. Fenner was named as executor. On petition filed by Mr. Fenner, on October 13, 1881, the will was admitted to probate, he appointed executor thereof, and letters testamentary thereon issued to him, on October 28, 1881.

<p>Homestead.—A Widow Without Minor Children is Entitled to have a homestead selected and set apart by the court out of decedent’s separate estate, there being no community property.</p> <p>Homestead.—The Court must Set Apart a Homestead upon the application of a widow, if none has been selected in the lifetime of the deceased spouse. There is no discretion in the matter.</p> <p>The Eight of the Surviving Spouse to a Homestead in separate estate of the decedent is limited to an estate for years, for life, or until the happening of some event, as the marriage of the survivor, as may be decreed by the court. But the exercise of the court's power is limited by a sound discretion acting upon the circumstances of the particular ease; if the survivor is young and likely to remarry, a limitation for life might be indiscreet, otherwise where she is of an advanced age.</p> <p>Homestead.—The Purpose of the Statute in Giving a Homestead right to the surviving spouse out of the decedent’s separate estate is to provide a home for the survivor, which no one can touch; merely depriving the survivor of the power of alienation.</p>

On October 20, 1885, Maria Ricaud, widow of the above-named decedent, died intestate, and A. P. Needles was thereafter appointed administrator of her estate. On August 2, 1886, the administrator filed a petition for distribution herein. Decedent herein, by his will, left the sum of $5,000 to his widow, and the sum of $2,000 to her daughter by a previous marriage.

<p>Will.—Every Person Over the Age of Eighteen Years, of Sound Mind, may, by last will, dispose of all his estate remaining after payment of his debts.</p> <p>Will.—A Person is of Sound and Disposing Mind who is in the possession of all the natural mental faculties of man, free from delusion, and capable of rationally thinking, reasoning, acting and determining for himself. A sound mind is one wholly free from delusion. Weak minds differ from strong minds only in the extent and power of their faculties; unless they betray symptoms of delusion their soundness cannot be questioned.</p> <p>Will—Delusion.—It is not the Strength of a Mind which determines its freedom from delusion; it is its soundness.</p> <p>Will—Delusion of Mind is a Species of Insanity.—The main character of insanity, in a legal view, is the existence of a delusion.</p> <p>Will.—A Person is the Victim of Delusion when he pertinaciously believes something to exist which does not. Belief of things which are entirely without foundation in fact is insane delusion; that is, where things exist only in the imagination of a person, and the nonexistence of which neither argument nor proof can establish in his mind.</p> <p>Will.—If a Person is Under a Delusion, though there is but Partial Insanity, yet if it is in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity.</p> <p>Will.—Belief Based on Evidence, However Slight, is not Delusion; delusion rests upon no evidence whatever; it is based on mere surmise. The burden of proof is upon the party alleging insanity or insane delusion.</p> <p>Will.—A Will Produced by Undue Influence cannot stand.</p> <p>Will.—Undue Influence is any Kind of Influence, either through fear, coercion, Or importunity, by which the testator is prevented from expressing his true mind. It must be an influence adequate to control the free agency of the testator. If a weak-minded person is importuned to such an extent that he has not sufficient strength of mind to determine for himself, so that the proposed script expresses the views and wishes of the person importuning, rather than his own, and is not his free and unconstrained act, it is not his will. Undue influence, or supremacy of one mind over another, is such as prevents that other from acting according to his own wish or judgment.</p> <p>Will—Undue Influence.—Neither Advice, Argument, nor Persuasion will vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Neither does undue influence arise from the influence of gratitude, affection or" esteem.</p> <p>Will.—If the Testator has Sufficient Memory and Intelligence fairly and rationally to comprehend the effect of what he is doing, to appreciate his relations to the natural objects of his bounty, and understand the character and effect of the provisions of his will; if he has a reasonable understanding of the nature of the property he wishes to dispose of, and of the persons to whom and the manner in which he wishes to distribute it, and so express himself, his will is good. It is not necessary that he should act without prompting.</p> <p>Will.—Undue Influence may be Defined as that which compels the testator to do that which is against his will, through fear or a desire of peace, or some feeling which he is unable to resist, and but for which the will would not be made as it is, although the testator may know what he is about when he makes the will, and may have sufficient capacity to make it.</p> <p>Will.—What would be an Undue Influence on One Man might be no influence at all on another. This depends upon the capacity, in other respects, of the testator.</p> <p>Will.—Undue Influence must be an Influence Exercised in Relation to the will itself, and not in relation to other matters or transactions. But it need not be shown to have been actually exercised at the point of time that the will was executed.</p> <p>Will.—Undue Influence cannot be Presumed, but must be Proved, and the burden of proving it lies on the party alleging it. Such evidence must often be indirect and circumstantial, for undue influence can rarely be proved by direct and positive testimony. The circumstances to be considered, stated,</p> <p>Will—Insane Delusion—Undue Influence.—The Evidence in this Case reviewed at length and the conclusion reached, that the testatrix was the victim of an insane delusion, of which the instrument propounded was the offspring, and that the testatrix was unduly influenced to make the will in favor of proponent.</p>

<p>Will.—A Bequest of “Ornaments” is in this case construed to embrace jewelry and “jewels in general.”</p> <p>Will.—A Bequest of “Her Wardrobe” by the testatrix is held in this ease not to include her “ornaments.”</p>

Charles McLaughlin died in San Francisco, on December 13, 1883, leaving a will, bearing date February 8, 1866, with a codicil executed December 22, 1869. The operative portions of the will and codicil made Kate D. McLaughlin, wife of the testator, his sole devisee, legatee and executrix.

<p>Insanity of Testator—Evidence and Burden of Proof.—The Jdgal presumption is in favor of the sanity of a testator, and the burden of proof is on the contestant of his will to demonstrate the contrary; and if the contestant prevails, in a case of doubt, it must be by a preponderance of proof, and the number, character and intelligence of witnesses, and their opportunity for observation, should be taken into account.</p> <p>Witnesses—Credibility as Affected by Station in Bife.—Persons employed in domestic service and other categories of honest labor are entitled, as witnesses, to credence equally with those who plume themselves on their higher level, affecting to look down on those who work for wages as inferior. Before the law there is no such distinction, and in courts of justice all must be co-ordinated, irrespective of the accidents of artificial and conventional social relations.</p> <p>Witnesses—Manner of Testing Credibility.—Each witness is a man or woman to be treated as an individual, a moral unit, tested for integrity and veracity on his merits or her title to credit by the inherent and extrinsic elements of belief, or the circumstantial criteria of credibility. These are the only considerations for the court in weighing evidence.</p> <p>Insane Delusions—Business Capacity.—Business capacity may coexist with monomania or insane delusions.</p> <p>Insane Delusions—Vulgarity of Testatrix.—Where the vulgarity in behavior and speech of a testatrix is relied upon to establish the presence of insane delusions, her whole conduct, at home and aboard, should be considered, and not merely her conduct within her own house, the alleged acts of immodesty in this case being confined to the home premises of the testatrix, while her behavior abroad was not subject to adverse criticism.</p> <p>Insane Delusions—Eccentricities not Suddenly Acquired.—Eccentric habits of speech, if not suddenly acquired, are not evidence of insanity.</p> <p>Expert Evidence—Its Nature and Value.—-Expert evidence is really an argument of the expert to the court, and is valuable only with regard to the proof of the facts and the validity of the reasons advanced for the conclusions.</p> <p>Insane Delusions—Suspicions as to Husband’s Constancy.—Where there was at least one instance in the conduct of a husband which might arouse in the mind of the wife a suspicion as to his constancy, the fact that her suspicions may have been unjust and her inferences too general, is merely an error of logic, and not an evidence of insanity or of an insane delusion. She has a right to infer, however erroneously, or from inadequate premises, to a universal conclusion.</p> <p>Insanity—Faulty Logic.—False logic or faulty ratiocination is far from the manifestation of insanity, so long as the process is formally correct, not incoherent or inconsequential.</p> <p>Insane Delusions—Fear of Poisoning.—A fear of poisoning on the part of a testatrix, even though a delusion, must, in order to invalidate her testamentary act, be continuous, persistent, and operative upon her volitional capacity.</p> <p>Insane Delusions—Fear of Poisoning.—The mistaken belief of a testatrix, when suffering with chronic stomach trouble, that her food has been tampered with, does not, as a matter of law, amount to an insane delusion.</p> <p>Insanity—Unreasonable Suspicions.—Unfounded and unreasonable suspicions are not insanity.</p> <p>Insanity—Insomnia.—The mind of a testatrix is not necessarily diseased because she is at times troubled with insomnia while afflicted with an intestinal ailment.</p> <p>Insane Delusions—Unfounded Suspicions.—The sanity of the testatrix in this ease being questioned because she suspected that her husband was unfaithful to her, and that he was attempting to poison her and to send her to an insane asylum, the court observed: There is a very large class of people whose sanity is undoubted, who are unduly jealous or suspicious of others, and especially of those closely connected with them, and who upon the most trivial, even whimsical, grounds wrongfully impute the worst motives and conduct to those in whom they ought to confide. This insanity, which is developed in a great variety of forms, is altogether too common, and too many persons confessedly sane are to a greater or less degree afflicted with it, to justify us in saying that because the deceased was so afflicted she was insane, or the victim of an insane delusion.</p> <p>Insane Delusions—Suspicions—Evidence and Burden of Proof.—The line between unfounded and unreasonable suspicions of a sane mind and insane delusions is sometimes quite indistinct and difficult to define. However, the legal presumption is in favor of sanity, and on the issue of sanity or- insanity the burden is upon him who asserts insanity to prove it. Hence, in a doubtful case, unless there appears a preponderance of proof of mental unsoundness, the issue should be found the other way.</p> <p>Insane Delusions—Suspicions—Tests of Insanity.—Suspicion is the imagination of the existence of something, especially something wrong, without proof, or with but slight proof; it is an impression in the mind which has not resulted in a conviction. It is synonymous with doubt, distrust, or mistrust—the mind is in an unsettled condition. Suspicion existing, slight evidence might produce a rational conviction or conclusion; this without evidence, however slight, would be a delusion. Is there evidence, however slight? This is the test.* The suspicion may be illogical or preposterous, but it is not, therefore, evidence of insanity.</p> <p>Insane Delusions—Suspicions as to Husband’s Constancy.—If a . wife has evidence, though slight, on which to base a suspicion of her husband’s unfaithfulness, and has no settled conviction on the subject, her suspicion does not amount to an insane delusion.</p> <p>Insane Delusion—Conspiracy to Confine Wife in Asylum.—The contention in this ease that the testatrix was afflicted with an insane delusion in that she believed her husband conspired to confine her in an insane asylum, was found by the court to be unsupported by the evidence, especially in view of the fact that the husband had twitted her of being crazy and threatened to break her will.</p> <p>■ Insane Delusions—Testimony of Business Men.—The value of the testimony of business men and acquaintances, acquired in commercial dealings with a person alleged to be the victim of insane delusions, is favorably regarded by the courts, on the issue of insanity.</p> <p>Testamentary Capacity—Inquisition Before Execution of Will.— The examination by medical experts of a testatrix prior to her execution of her will, for the purpose of determining her testamentary capacity, is discussed by the court, both as a suggestion of insanity, and as a wise precaution.</p> <p>Testamentary Capacity—Will as Evidence.—A will may be considered in proof of its own validity and of the sanity of its maker.</p> <p>Testamentary Capacity—Suspicion of Husband.—If there are causes sufficient to induce a sane woman to ignore her husband in her will, or reduce what otherwise would have been a just allowance, the fact that she entertains an unjust or an unfounded suspicion in regard to his treatment of her, or an unjust prejudice against him, does not affect the will nor demonstrate that she is necessarily of unsound mind.</p> <p>Testamentary Capacity—Test for Determining.—The tests of testamentary capacity are: (1) Understanding of what the testatrix is doing; (2) how she is doing it; (3) knowledge of her property; (4) how she wishes to dispose of it; (5) and who are entitled to her bounty. -</p> <p>Testamentary Capacity—Testimony of Attesting Witnesses.—The testimony of the attesting witnesses, and, next to them, the testimony of those present at the execution of the will, are most to be relied upon in determining the question of testamentary capacity.</p> <p>Testamentary Capacity—Insane Delusions.—In this case the husband of the testatrix contests her will on the ground that she was of unsound mind by reason of being the victim of insane delusions that her husband was unfaithful, that he was trying to poison her, and that he was conspiring to confine her in an insane asylum, but the court finds against the contestant and sustains the will.</p>

<p>Application for partial distribution by Eugene Wormell.</p>

<p>Will—Undue Influence.—The Evidence in this contest of a will, examined and held insufficient to establish a charge of undue influence.</p> <p>Will—Inebriety of Testator.—The Evidence in this will contest examined and held not to sustain a charge that the testator was so addicted to the excessive use of intoxicants as to deprive him of testamentary capacity.</p> <p>Will—Unsounctness of Mind.—The Evidence in this will contest held insufficient to establish a charge of unsoundness of mind on the part of the testator.</p> <p>Will—Insane Delusion.—A Belief based on evidence, however slight, is not delusion.</p> <p>Will.—The Fact that a Guardian has been Appointed for a person because of his ineompetency to manage his affairs is not conclusive of his incapacity to make a will.</p> <p>The Words “Insane” and “Incompetent” defined and distinguished.</p>

<p>Equitable Conversion—Whether Takes Place by Implication.—Equitable conversion may take place by implication as well as by express words.</p> <p>Equitable Conversion—When Worked by Implication.—If a will authorizes the executors to sell real estate, and the general scheme of the testament manifests an intention on the part of the testator that there shall be an equitable conversion of the realty into personal property, such a conversion will take place, although the power to sell is not imperative.</p>

<p>An Olographic Will Which by Mistake Bears a Bate at least twenty-eight years prior to the time of its execution should be denied probate. [See note at end of opinion.]</p>

This was an application by the widow to have a homestead selected and set apart by the court.

<p>Application for removal of executrix.</p>

<p>Will—Testamentary Capacity—Intoxication.—A man temporarily overcome by a single debauch is, for the time being, of unsound mind, and has not testamentary capacity; so a person to whom intoxication has become such a habit that his intellect is disordered and he has lost the rational control of his mental faculties, is of unsound mind.</p> <p>Will Contest.—Where the Questions of Unsoundness of Mind and Undue Influence are presented in the same ease, and in their consideration may overlap one the other, it has been said that as legal propositions they are to be kept distinct and apart. But considering the two issues together, it is noted that although mere weakness of intellect does not prove undue influence, yet it may be that in such feeble state, with the mind weakened by sickness, dissipation or age, the testator more readily and easily becomes the victim of the improper influences of those who see fit to practice upon him.</p> <p>Will—Unreasonableness does not Vitiate.—The will of one having testamentary capacity cannot be avoided because unaccountably contrary to the common sense of the country. If not contrary to the law, it stands for the descent of his property, whether his reasons for it are good or bad, provided they are his own reasons, not influenced by the unlawful influence of others.</p> <p>Will—Undue Influence.—There is a Distinction Between the Influence of a Lawful Belation and that of an unlawful relation. A lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing the execution of a will. However great the influence thus generated, there is no taint of unlawfulness in it; nor can there be any presumption of its unlawful exercise merely because it is known to have existed and to have manifestly operated on the testator's mind as a reason for his testamentary disposition. It is only when such influence is exerted over the very act of devising, preventing the will from being truly the testator’s act, that the law condemns it as vicious.</p> <p>Will—Undue Influence.—While the Natural Influence of a Lawful Belation must be lawful, even where affecting testamentary dispositions, the natural or ordinary influence of an unlawful relation must be unlawful, in so far as it affects testamentary dispositions favorably to the unlawful relations and unfavorably to the lawful heirs. So, it would be doing violence to the morality of the law, and thus to the law itself, if courts should apply the rule recognizing the natural influence arising out of legitimate relationship to unlawful as well as to lawful relations; and thereby make them both equal, in this regard at least, which is contrary to their very nature.</p> <p>Maxim.—No One Shall Derive any Profit, Through the Law, by the influence of an unlawful action or relation.</p> <p>Wills—Undue Influence.—If the Law Always Suspects and Inexorably Condemns undue influence, and presumes it from the nature of the transaction, in the legitimate relations of attorney, guardian and trustee, much more sternly should it deal with unlawful relations, where they are, in their nature, relations of influence over the kind of act under investigation. In their legitimate operation, trust positions of influence are respected; but where apparently used for selfish advantage they are viewed with deep suspicion; and it would be strange if unlawful relations should be more favorably regarded.</p> <p>Will—Undue Influence.—General Cases and Authorities, as to what does and what does not constitute undue influence, are inapplicable in a case where the influence charged originated and was exercised under an unlawful relation.</p> <p>. Will—Insane Delusion.—If a Person Persistently Believes Supposed Facts which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, as far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. So, if a testator labored under such a delusion in respect to his wife and family connections, who would naturally have been the objects of his testamentary bounty, and the court can see that the dispository provisions of his alleged will were or might have been caused or affected by the delusion, the instrument is not his will.</p> <p>Will—Evidence of Undue Influence.—Upon the issue of undue influence in the execution of wills, the evidence must often be indirect and circumstantial. Very seldom does it occur that a direct act of influence is patent; persons intending to control the actions of another, especially as to wills, do not proclaim the intent. The existence of the influence must generally be gathered from circumstances, such as whether the testator formerly intended a different disposition; whether he was surrounded by those having an object to accomplish, to the exclusion of others; whether he was of such weak mind as to be subject to influence; whether the instrument is such as would probably be urged upon him by those around him; whether they are benefited to the exclusion of formerly intended beneficiaries.</p> <p>Will—Intoxication and Undue Influence.—The testator in this case had been a prominent and respected citizen, but for some years before his death he became an habitual drunkard, and after becoming such his whole being changed with respect to his affection for his wife and children, as well also in his personal habits and his social nature and disposition. During this period he became acquainted, while taken away from home, with a woman whom he permitted to act as his nurse; and who subsequently obtained a control over him, to the exclusion of his family, and so that he never again returned to his wife or children. Six months before his death he executed a will wherein this woman was made residuary legatee, and for nearly all his estate; his wife and children were expressly excluded by the instrument. They contested the probate of the will, and tendered as issues unsoundness of mind, and undue influence exercised by the residuary legatee. The court found in favor of the contestants upon both issues, and denied the probate of the will.</p>

The administratrix of the estate of Patrick Curtis, deceased, filed a petition alleging that certain personal property belonging to the estate was in the possession of Patrick Reddy, who refused to deliver it to her. The petitioner prayed for an order requiring him to do so.

The opinion of the court in this case was rendered upon a motion to confirm the report of John M. Burnett, referee to examine and… Held: “All the items of payments made through the German Savings & Loan Society and French Bank (not specially withdrawn), and which aggregate: Paid German Bank $4,396.35, paid French Bank $943—$5,339.35, I reject, on the ground that they were payments made on mortgages given by the residuary legatee, and are not proper charges against the…

<p>Homestead.—When Application is Made by a Minor child of a decedent to have a homestead set apart from community property, the surviving widow having died, and the other children having attained majority, without applying for a homestead, the court must grant the application and set aside the homestead absolutely, not limiting it to the period of minority or otherwise.</p> <p>Homestead—Selection from Separate Property.—It is only when a homestead is set apart from the separate property of the decedent that it is required to be for a limited period.</p> <p>Homestead—Success or to Bight.—The right to a probate homestead may be lost, and there can be no successor to that right.</p> <p>Homestead—How Far an Estate.—The right to have a probate homestead set aside is not an estate; it becomes such when a decree is made setting aside the homestead and title then vests in the beneficiaries.</p> <p>Homestead—Effect of Setting Aside.—When property is set apart as a probate homestead, the property is then taken out of the jurisdiction of the court.</p> <p>Homestead.—The Bight to a Probate Homestead is tested or considered not as of the date of the death of the decedent but as of the time of the application.</p> <p>Courts.—It is the Duty of Courts to Administer the Statute Law as they find it, and not to account for its incongruities.</p>