Volume 1 — Myrick's Probate Reports (Cal.)

<p>Undue influence—Will drafted by beneficiary.—The fact that the beneficiary drafted the proposed will, is, in itself, only a suspicious circumstance, which might prompt a closer scrutiny on the probate; but when the execution, in all other respects, is free from criticism, the mere drafting by the person to he benefited, can raise no presumption of undue influence.</p> <p>Widow’s allowance.—The right of a widow to have an allowance set over to her out of the estate, may very properly be tested by reference to her relations with deceased, and her right, as wife, to call on him for her maintenance during his lifetime.</p> <p>A wife who has separated from her husband; re-married under the erroneous impression that she was divorced; had children by such second marriage; and never, at any time, had conjugal relations with decedent, cannot be said to be a member of his family, so as to entitle her to a family or widow’s allowance.</p> <p>Construing sections, O. C. 1272; C. 0. P. 1312, 1466-8.</p>

<p>Will, Olographic — Signature need not be a subscription__A will commencing, 1 ‘ I, George W. Johnson do make, etc., this my last will,” written throughout in the handwriting of the testator, hut not signed at the foot, is sufficiently signed.</p> <p>Construing sections, 0. 0., 1276-7 ; 0. 0. P., 1309.</p>

<p>Community Property—Bequest by husband to wife must be satisfied out of husband’s half.—Insurance policy, the premiums on which were paid out of the earnings of decedent, a married man, is part of common property of marriage ; and the widow is entitled to, one half thereof as survivor of the marriage.</p> <p>Bequest to wife to be satisfied out of husband’s sedábate estate.—Where the decedent bequeathed to his wife the interest accruing on $4,000 until she should re - marry, she is entitled to be paid such interest from his death until such re - marriage, out of the estate, subject to his testamentary disposition.</p> <p>Construing sections, C. 0., 164, 1366.</p>

<p>Revocation of Pbobate—Attobney appointed by the Coubt cannot waive minor’s right to apply for revocation of the probate of a will.</p> <p>Appearance by such attorney upon probate does not bind the minor in the premises.</p> <p>Construing sections, C. C. P., 1307, 1333, 1718.</p>

<p>Order of sale of real estate — Grounds of opposition.—It is no ground of opposition to the granting of an order of sale of real estate, that there is a litigated claim held by estate against the grantee of a devisee, on which claim, the debtor claims there is nothing due. It is not necessary to abide the determination of such litigation before granting the order of sale.</p> <p>Statute of limitations.—The allowance of a claim stays the running of the prescription.</p> <p>Construing sections C. C. P, 356, 363, 1540; affirmed, 46 Cal., 304.</p>

<p>Administrator chargeable with interest in case of unreasonable delay in heeding estate ODEN.—"Where administrator, after having collected funds of the estate which can be distributed, delays, for no good reason, to file his account and close estate, he may be held chargeable with interest.</p> <p>Construing section, C. 0., 2237.</p>

<p>Sale of seal estate by exeodtob, who is also a devisee thereof in trust under the will.—A sale does not require to be reported to the court for confirmation, when made hy such devisee.</p> <p>Grantee under such sale may apply to the court for distribution to him, directly, of his purchase property.</p> <p>Beneficiaries entitled to residue under such devise in trust may apply to the court, at their option, to have such remainder distributed to them in kind or may take proceeds of a sale thereof.</p> <p>Construing section, C. C. P., 1561; afiirmed, 49 Cal,, 76.</p>

<p>Guardianship of insane wife__The husband cannot be allowed the custody of the person of his insane wife, when it appears that his friendliness towards her is very questionable; and that his motives for seeking to obtain letters are those of self interest.</p> <p>Construing section, O. C. P., 1763.</p>

<p>Will—Charge to jury on contest of probate.</p> <p>Inofficious, will ab irata.</p> <p>Mental incapacity, restraint, undue influence, fraudulent misrepresentation, delusion.</p>

<p>(rUABDIANSHIP AND CUSTODY OF MINOB GIBUS.—CONTEST BETWEEN FATHER AND MOTHER WHO HAVE BEEN DIVOBCED.</p> <p>Where it appears that the mother is a proper person to have the custody of minor girls and where no good reason appears why such custody should be awarded to the father, whose compentency appears doubtful, letters will issue to the mother. Construing sections, C. C., 197-8, 246; C. C. P., 1751.</p>

<p>Revocation of Probate. -Non-resident alien has, after ten i’and possibly five) YEARS NO INTEREST IN ESTATE ENTITLING HIM TO ASK FOR REVOCATION OF PROBATE OF WILL.—UNDER THE CLAUSE MAKING PROBATE CONCLUSIVE AFTER ONE YEAR, SAVE AS TO PERSONS LABORING UNDER DISABILITY, COVERTURE IS NOT A DISABILITY.</p> <p>Decedent died Sept. 16,1859. Will admitted to probate Oct. 16,1860. Petition by non-resident aliens filed, April 29, 1871, for revocation, on the ground that will is a forgery, and alleging that one of petitioners had theretofore suffered under disability of coverture.</p> <p>Held, that Statute of April 19, 1856, relating to escheated estates (Statutes 1856, p. 137) bars all interest in the estate, whereon a right to contest will could be based; and that married women labor under no disability in view of the right to sue and be sued without joinder of husband or next friend.</p> <p>Construing sections, C. C. 672; C. C. P., 1269-1272, 1327,1333; statutes 1856, p. 137.</p>

<p>Will.—Autograph will where testator died before the authorization of an olographic will by the C. Code and not attested by witnesses, is a nullity.</p> <p>By the law of what date governed.—The law in force at the date of the death of the testator governs the formalities of attestation.</p> <p>Construing section, C. C., 1375.</p>

<p>Will.—Inofficious, ab irato. Charge to jury on contest of probate.</p> <p>Facts.—B. an old ranch settler in California, who was for many years a heavy drinker,, in 1865 gave a ranch, together with stock, etc., to his married daughter, the wife of a dentist. B.’s wife died in 1864 while in the dental chair of her son-in-law. In 1866, B., and Mrs. P., a Spanish-Mexican widow, neighbor of B„ intermarried, the bride having a family of six children by a former husband. Two months after the marriage, the will in contest was executed. Black by the will devised his entire estate (except some few friendly legacies), to his Executors in trust for his wife and stepchildren, excluding his own daughter on the ground that she was already provided for. B. died in 1870 aged sixty-six years. The daughter contests. Grounds:—Restraint, unsound mind, alcoholism, undue influence, misrepresentation, habitual intemperance.</p> <p>Construing sections, C. C., 1272; O. C. P., 1312,1313,1317.</p>

<p>Mabbiage, evidence oe.—Mebetbicious cohabitation with ob without pbomise of futube mabbiage does not constitute a marriage.</p> <p>Construing sections, 0. 0., 57, 68; 0. 0. P., 1963; affirmed 47 Cal. 621.</p>

<p>Will, Devise.—The word, devise, may cover property other than real estate, notwithstanding its primary signification.</p> <p>Step-son—A stepson is not such a relation as would, under Sec. 1310, C. 0„ prevent a legacy from lapsing.</p> <p>Construing sections, C. C., 1310,1331; affirmed, 48 Cal., 643. .</p>

<p>Will, Attestation of.—On the execution of a will, the witnesses must in some way, either by word or act, be informed by the testator personally or by some one speaking for him, in his presence, that the document is his will. A mere tacit signing by the testator with attestation by the witnesses is not enough.</p> <p>Construing section, C. C., 1276.</p>

<p>Homestead upon a lot held by claimant as tenant in common—Residence to comply with the act authorizing a claim of homestead in such case, (March 8, 1868, stat. 1867-8, p. 116), must be the principal use to which the premises are devoted. Living over a shop used by both the tenants in common as a place of business, is a secondary purpose.</p> <p>The Homestead amendment of 1862, (statute 1862, p. 519,) abrogated the necessity of a written abandonment of homestead; and to keep a claim to a homestead alive so as to be available in this court, there must have been an actual residence continuously to the date of the death of decedent.</p> <p>Faithlessness of wife.--A wife who, prior to her husband’s death, has been notoriously unfaithful to him, and is not a member of his family at his death, is not entitled to have a homestead set apart to her by the Probate Court.</p> <p>Construing sections, C. C., 146, 1237; statutes 1867-8, p. 116; statutes 1862, p. 519.</p>

<p>Claim against Estate of Exeoutok not contingent, but absolute upon Executor’s death. If not presented within the ten months, it is barred.</p> <p>Opposition to distbibution must state that there is a liability, unsatisfied, of a certain and definite amount or nature. It is insufficient to allege that there are unsettled accounts between the deceased Executor and his trusts; it is material that on the settlement of such accounts, there is a balance due from the Executor to his trust.</p> <p>Construing section, C. C. P., 1493; affirmed, 49 Cal., 111.</p>

<p>Will__Charge to jury on contest of probate.</p> <p>Narcotics.—Inofficious will.—Mental incapacity arising from the opium habit. Undue influence.</p> <p>Attestation.—No formal attesting clause necessary.—Bequest to witnesses to sign.—Need not be a direct request.</p> <p>Construing sections, C. C„ 1270,1272, 1276; O. C. P., 1312,1313,1317.</p>

<p>Marriage.—Facts showing an actual marriage, though unaccompanied by any formal ceremony.</p> <p>A bona fide agreement to live together as husband and wife, followed by a joint residence, a community of funds, the bringing up of children, and a holding out to the community at large of honorable relations as married people, with no touch of illicit lewdness in the lives of the parties, must be held to constitute a married status, even though there has been no formal solemnization of the contract.</p> <p>Construing sections, C. C., 55-57, 68.</p> <p>Homestead.—Where property claimed as homestead is worth more than $5,000, and the widow continues to occupy it after return of inventory, she should pay rent for the use proportionally to its value in excess of the $5,000; and the rent proportioned upon such excess in value should be charged against her in her account as administratrix.</p> <p>Claim against insolvent estate.—Intebest.—There'was a mortgage claim against the estate presented and allowed, in which compound interest had been included, according to the terms of the mortgage. This claim, the widow paid without order of the Court, in full; it appears that the estate is insolvent.</p> <p>Held, that the widow cannot be allowed a credit for her payment for any interest over and above ten per cent., although in a foreclosure suit, the bank might have recovered the full interest.</p> <p>Construing sections, C. C. P., 1474-86-1494; statute 1861-637.</p>

<p>Homestead.—Property used for other purposes included in declaration, CANNOT BE SET APART BY DECREE.</p> <p>Where the lot described in homestead declaration is not entirely devoted to family residence, but a portion is covered by a dwelling rented to other parties, the decree can be granted only for part used for actual residence.</p> <p>Commissions of Executor not allowed on Homestead.—The homestead cannot be included in the estimate of estate’s value as a basis for commissions.</p> <p>Construing sections, C. C., 1263; O. C. P., 1618,</p>

<p>Seaman’s Estate.—The U. S. Shipping Commissioneb, under the Act of Congress creating his office (Statutes at Large, Title L1II, Chap. 3, p. 883) has a right only to take possession of such effects of a sailor, dying on a voyage to this port, as are on board ship. He cannot intermeddle1 with the estate or effects on shore, and is not, therefore, ex officio entitled to letters of administration.</p> <p>Construing TJ. S. Statutes at Large, Title 53, Oh. 3, p. 883.</p>

<p>Claim, presentation of.—Action pending and verdict had in the lifetime of DECEDENT, BUT NO JUDGMENT ENTERED UNTIL AFTER HIS DEATH, WHEN THE EXECUTORS WERE SUBSTITUTED, AND APPEAL HAD AND FINAL JUDGMENT, TO BE PAID IN COURSE OF ADMINISTRATION, NO CLAIM HAVING BEEN PRESENTED.</p> <p>Held: Thai if the presentation of a claim had been necessary, the executors should have raised the point in the District Court; that inasmuch as they did not then raise the question, it is too late now.</p> <p>Construing section, C. C. P., 1502.</p>

<p>Custody of funds by Administbatob.—An administrator is entitled to the custody of funds of the estate and may deposit them in bank to his credit; and unless it appears that he has used the funds for his own benefit, he will not be chargeable with interest, even though his accounts are not absolutely methodical.</p> <p>Commissions of Administbatob.—Extra allowance made when the estate has been particularly laborious in management.</p> <p>Construing sections, C. C. P., 1581,1618.</p>

<p>Administbatoe.—Loaning funds of estate. Liable for any use of funds or parting with them to any one for any purpose other than their security.</p> <p>Account.—Funds treated as a cash item. Administrator is thereby estopped from afterwards showing that they were loaned out.</p> <p>Construing section, O. C., 2261.</p>

<p>Practice.—Removal oe Administrator.—Administrator not entitled to a jury upon the question of his removal for maladministration.</p> <p>An application for the removal of an administrator under Secs. 1436-8, G. G. P., is to be heard by the Court sitting without a jury, the question being one entirely within the discretion of the Judge.</p> <p>Construing sections, C. C. P., 1436-8.</p>

<p>Guardian.—Account__Estoppel. Agreement by guardian to maintain minor at his own charge as an inducement to the Court to issue letters to him. He is bound by such offer, which was embodied in the order of appointment, and cannot be reimbursed for his expenses in that regard; and such items, if entered in his account, should be disallowed.</p> <p>Construing sections, 0. C., 246; C. C. P., 1771.</p>

<p>Homestead allotted by decree of Probate Court.—Mortgage lien thereon.</p> <p>Where the Probate Court has allotted a lot of land to the widow and family of the deceased as a homestead, it loses jurisdiction of the property and can make no order looking to the subjection of the lot to the payment of a mortgage lien thereon. Such lien holder must pursue his remedy by foreclosure in the proper Court.</p> <p>Construing sections, C. C. P., 1465,1486.</p>

<p>Gift inteb vivos.—The delivery by decedent, of a deed for which the consideration price was receivable from the agent managing the sale, and of a paper, whereby it seems that decedent’s wife as donee could claim the proceeds of the sale and actually did receive them after the donor’s decease, constitute a gift inter vivos, although the deed may not have been actually effective or the money paid in the lifetime of donor.</p> <p>Construing section, C. C„ 1147.</p>

<p>Will__Pbaotioe on contest.—The contestant is plaintiff.</p> <p>It is the duty of contestant of probate to offer proofs in support of his side of the issue before the proponent can be called upon to reply. Contestant is plaintiff; proponent, defendant.</p> <p>Should contestant decline to proceed, the Court will dismiss the jury empanelled to try the issues raised and itself take proof upon all the issues directed by statute.</p> <p>Construing section, C. C. P„ 1312.</p>

<p>Will.—Revocation of probate.—Attorney appointed by the Court to represent absent or minor heirs has no right as such to institute proceeding for revocation of probate. To obtain a standing in Court, for such a purpose, a general guardian should be appointed.</p> <p>Notice defective.—Where the notice on probate is defective, it is the duty of the Court on attention being called to the defect, to set aside all proceedings based on such notice.</p> <p>Construing sections, C. C. P., 1303-4; 1327, 1718.</p>

<p>Will__Signature to other than an olographic will should be at the foot of the instrument.</p> <p>A will signed above the clause appointing executor is valid to the extent of all that precedes such signature.</p> <p>Construing section, C. C., 1276.</p>

<p>Presumption as to Gift of moneys in bank—Husband and wife.</p> <p>A declaration and instruction by a married woman to bank officer, to put her moneys to the account of “ J. C. or K. 0.,” J. C. being her husband, and such being a customary power to the bank to pay to either, does not raise a presumption that such moneys were a gift to the husband. The instruction is a mere authority to draw, revocable by death; and the husband, as administrator, must include the account in his inventory.</p> <p>Construing section, C. C., 2355.</p>

<p>Will.—Olographic__Signature. The law in force at time oe death effectual. A will executed before the passage of the law permitting olographic wills by a testator dying during a period when such law was in force is valid, if olographic.</p> <p>The signature to an olographic will need not be at the/ooi of the instrument. Otherwise, as to a will attested by witnesses.</p> <p>Construing sections, C. C„ 1276-7; C. C. P., 1309, 1940.</p>

<p>Will___Bequest to an extinct obganization. A similar association, organized subsequently to the vesting of a legacy by the death of testator, cannot take a bequest conditioned that if a certain organization had ceased to exist at the death of testator, the fund should be otherwise appropriated, the proposed beneficiary having become extinct.</p> <p>Construing section, C. C., 1345.</p>

<p>Specific Devises, Taxes and assessments upon.—Devisee- should assume and PAT THEM ULTIMATELY ; BUT PENDING ADMINISTRATION, EXECUTOR SHOULD PAY THEM AND BE REIMBURSED BEFORE DISTRIBUTION.</p> <p>Certain parcels of real estate had heen specifically devised. During administration, executor had satisfied all taxes and assessments upon the several parcels.</p> <p>Held, that the devisees should reimburse him for the outlay. In the event of their failure to do so, executor would be entitled to an order of sale of the property devised to satisfy his claim.</p> <p>Construing section, C. C. P., 1669.</p>

<p>Loan, facts showing, as distinguished fbom a deposit. Vebbal conteaot to BEPAY ON DEMAND. STATUTE OF LIMITATIONS BUNS FBOM DATE OF LOAN.</p> <p>S. loaned decedent, in 1863, SI,000; decedent, to keep the sum, paying S. legal interest, until demand. Decedent died in 1873. About two months before the death, S. demanded payment. A claim was allowed by widow, as administratrix, and Probate Judge. On hearing account of administratrix, the claim was contested by a creditor, as barred. S. claimed that decedent held as trustee. Claim rejected.</p> <p>Construing sections, C. C., 1818,1912; C. C. P., 312, 339; affirmed, 51 Cal., 215.</p>

<p>Succession.—Where the decedent leaves him surviving no issue, father, mother, brother, or sister, but does leave a wife and also children of a deceased brother or sister, the wife inherits the entire estate, to the exclusion of nephews or nieces. To enable nephews and nieces to take (by right of representation), there must be a brother or sister surviving to take with them.</p> <p>Where the widow in such case dies leaving children by a former marriage, such children succeed her in the estate vested in her on the death of the husband.</p> <p>Construing sections, C. 0., 1386, 1403.</p>

<p>Grant of Letters.—Under the law in force (March, 1875), the Court has a discretionary right to grant letters to nominee of the grandmother of an unmarried minor in preference to a mere creditor who applies.</p> <p>Construing sections, C. G. P., 1365,1379.</p>

<p>Homestead set apart to widow alone, there being no minor children.</p> <p>The widow, all the children being adults, is entitled to have the residence set apart for her use as a homestead.</p> <p>Construing sections, C. C. P„ 1465, 1486, 1517, 1544, 1549-53-54,1616-18; affirmed, 45 Cal., 696.</p> <p>Sale of Real Estate.—Employment of bbokbrs.—Brokerage.</p> <p>An executor has no right to bargain with a broker to procure bids for real estate upon the condition that he shall receive of the sum bid all over a given amount, even though that given amount is a fair price for the property.</p> <p>Brokerage is allowable as an expense of administration, but the amount should be passed upon by the Court.</p> <p>Attorney’s fee.—Where an attorney performs services which should properly devolve upon the executor, he should look to the executor for payment out of the executor’s commissions.</p>

<p>Presentation of claim.—Payment of debt secured by pledge without allowance.</p> <p>An administrator who is willing to assume the risk that the debt will not exceed the value of the pledge may redeem the property without waiting for a claim to be presented.</p> <p>Construing sections, C. C. P., 1493, 1513.</p>

<p>Jurisdiction.—Residence as a jurisdictional requirement. May be enquired INTO BY DIRECT PROCEEDING AT ANY TIME FOR THE PURPOSE OF HEARING APPLICATION TO REVOKE LETTERS. FACTS SHOWING PLACE OF RESIDENCE.</p> <p>Where application by petition has been made to this Court for letters of administration, and notice of hearing given, and letters issued, if at any subsequent time in the administration, it is made to appear that the Court had no jurisdiction by reason of non-residence of decedent, the Court will entertain a motion for discontinuance of proceedings. The fact of the giving of ten days’ notice by posting of hearing on petition for administration, does not bind the Court, when a direct attack is made upon the jurisdictional right of the Court.</p> <p>Facts from which the place of residence may be determined.</p> <p>Construing sections, Pol. C., 52; C. C. P., 1294.</p>

<p>Tnsukance Policy, Pbooeeds of.—Common ob sefabate estate.</p> <p>Where the first third of the amount of the premiums was paid by decedent out of his earnings before marriage and the remainder out of his earnings received subsequently to marriage, the Court must decide that one-third of the fund was decedent’s separate estate and the remainder community property.</p> <p>Construing sections, C. 0„ 163-4.</p>

<p>Devise.—Interpretation of phrase, “issue of her body,” etc., as applied to first beneficiary to be deemed as creating an estate in fee in her only when such is the evident intention of testator.</p> <p>Shelley’s case, rule in; “issue” not synonymous with “ hens ” within the rule of Norris vs. Hensley, 27 Cal., 439.</p> <p>Construing sections, C. O., 1329, 1334.</p>

<p>Jurisdiction of petition for Letters__Residence.</p> <p>Application for letters of guardianship should be made in the county where the proposed ward resides.</p> <p>Construing sections, Pol. C., 52; C. C. P„ 1294, 1747, 1763.</p>

<p>Grounds for revocation of letters.—What is maladministration.</p> <p>It is no ground for revocation of letters that executors have not filed accounts. The law is merely directory upon the subject; and there may be good reasons why the executor should withhold his accounts for a time.</p> <p>It is no ground for revocation, that debts appraised as valueless are uncollected. It is not the duty of an executor to pursue an insolvent endorser at the expense of the estate—especially, if the endorser is a corporation not apparently organized for the purpose of guarantee on notes. Such failure to litigate a doubtful claim is not ground for revocation of letters.</p> <p>Executors have no right to pay assessments upon stock shares unless they are willing to assume the risk of the shares being ivorth the assessment. Creditors or heirs may support the executor in so doing; but if he has not such guaranty, his course should be to sell the stock, if it cam be sold, as perishable.</p> <p>These are all matters to be heard on settlement of his accounts. An executor may err in judgment. That in itself is no ground for holding him liable.</p> <p>Construing sections, C. 0. P., 1522,1628.</p>

<p>Witness—Discovert.—Examination of a witness in Probate Court under Sec. 1159, O. 0. P., to discover property of estate.</p> <p>Sec. 1459, C. C. P., is intended to aid in the discovery of matters and transactions between the witness and decedent in the lifetime of the latter so that the administrator may, as to his knowledge in the premises, stand on equal terms with the witness. The section in question does not apply to transactions occuring after the death.</p> <p>Construing section, C. C. P., 1459.</p>

<p>Meretricious relations raise no presumption op a marriage, even where, for some temporary object or convenience, the parties assume to third parties the relation of husband and wife. Where a man’s mistress is occasionally called by his name or purchases articles, with his knowledge as his wife, that, of itself, raises no presumption of an honorable connection, especially where, in other legal relations, the woman holds herself out as a feme sole.</p> <p>Construing sections, C. C., 55; C. C. P., 1963.</p>

<p>Garnishment process served on executor.—The executor is not subject to garnishment process for the share, of heir who has been sued for a debt; nor can the heir’s interest be reached by process of garnishment before distribution.</p> <p>Construing sections, O. C. P., 717-18-19,1666.</p>

<p>Claim, allowance oh.—When res adjudieata.—Facts showing that thebe has been no absolute adjudication upon a claim.</p> <p>A claim for indebtedness to be paid out of the estate only when certain primary sources of payment had been exhausted was conditionally allowed by one of two executors (the other being absent from the State) but not by the Probate Judge, until after the settlement of first annual account, wherein the facts of such allowance were recited. Another annual account was settled, in which nothing appears touching the claim; and also a hearing of an application to sell real estate, which was granted, (there being indebtedness, even excluding the claim, to warrant such sale); and in the order, the right was reserved to the heirs to contest the claim.</p> <p>Held, on application by heirs in that behalf, that none of the proceedings recited above were a bar to their contesting the claim.</p> <p>Construing sections, C. C. P., 1636, 1657, 1647.</p> <p>Contbaot to out timber fbom public land, the title to which is pending in the U. S. Courts, the Commission having confirmed title to the claimants, under a grant, which confirmation has been reversed in the District Court, and an appeal therefrom taken, but subsequently dismissed.</p> <p>Such contbaot held to be legal and a claim thereunder allowable.</p> <p>Interpretation of clauses in contract fixing the period for which the duties of each party thereunder are to continue.</p> <p>Construing sections, C. C. P., 1493,1650; ü. S. statutes, p. 1049, Sec. 5388.</p>

<p>Will.—Appointment of Executob.—Where it can be fairly determined who is the person nominated as executor, inaccuracies in designating him, (he being the chief officer of one of the subordinate assemblies of a secret benevolent corporation or order,) may be explained by testimony extrinsic to the will; and the person intended by the testator will receive the letters.</p> <p>Construing sections, C. C., 1340, 1371.</p>

<p>Executob.—Incompetence of pebson named in will to take lettees by beason OF HIS IMMOBAL CHABAOTEB.</p> <p>Where testatrix, who was a woman of the town, nominates, as executor, her lover, a man who has done nothing for his own support for years; but has lived in the house with testatrix and subsisted upon her gains; and who admits that, during most of the period, he has “lived by his wits,’’ the Court will refuse letters testamentary, such a person being an improper subject to be clothed with authority by the Court.</p> <p>Construing section, C. C. P., 1350.</p>

<p>Leqaoy.—Demonstbative.—Where a special fund is set apart to pay demonstrative legacies, the Court will not endanger the means of their payment, by directing the payment out of such fund of a legacy that may be satisfied, ultimately, from another source.</p> <p>Construing section, C. C., 1357; affirmed, Sup. Court, April 7, 1880.</p>

<p>Succession.—Illegitimacy.—A half brother by the same father being illegitimate, CANNOT INHERIT. HALF SISTERS BY THE SAME MOTHER ARE ENTITLED TO TAKE.</p> <p>Conflicting sections.—Sections 1387 and 1388, O. C., conflict. Therefore, Sec. 1388 prevails, under Sec. 4484, Pol. Code.</p> <p>Construing sections, P. C., 4484; C. C., 1387-88.</p>

<p>Jurisdiction of Pbobate Court.—Cannot try title as between estate and stranger.—Legal title of real estate held by decedent, when claimed by a stranger under equitable claim.</p> <p>Held, that where there is a colorable title to the realty in the decedent, it is not competent for the Court, in cases where the question is one requiring evidence to determine, to assume that the estate has no interest; but the equitable claimant should be relegated to a Court of Equity to establish his rights.</p> <p>This is not in conflict with the duty of the Probate Court to decline to burthen its record with decrees disposing of interests in property which have no foundation whatever.</p> <p>Construing sections, C. C. P., 97, 1665,</p>

<p>Will.—Signature oe Witness. — Where a will appears to have received only a partial signature by attesting witness, as, for instance, the first name or initials; and the last name does not definitely appear to have been actually traced (either with ink or pencil), the execution of the will is imperfect and the probate should be denied.</p> <p>Construing section, C. C., 1276.</p>

<p>Claim, Ihtekest oh, when allowable.—The allowance of a claim by the executor and Probate Judge is not such a proceeding as will make the claim the judgment of a Court and so become interest bearing. The claim is not a judgment until it has passed through account and settlement and has been ordered paid.</p> <p>It is doubtful if any claim bears interest, when the payment of interest could not be enforced against decedent if he were alive. That is the true test.</p> <p>Construing sections, 0. 0., 1920; C. 0. P., 1497, 1649; affirmed, Supreme Court, March 26, 1877.</p>

<p>Account, effect of settlement.—Not a judgment.</p> <p>An executor dies after an account has been settled showing a balance in his hands. A claim is presented to his administrator and allowed. His estate is insolvent. It is sought to make such claim a preferred one, as a judgment.</p> <p>Held, that the settlement of account was not a judgment in that sense; but merely a finding that so much property was in his hands for further administration. Construing sections C. C. P., 1637, 1613; affirmed, Sup. Court, Feb. 19, 1878.</p>

<p>Will.—Cancellation of a single clause therein by erasure only. Where the purpose to so cancel is evident, it should be admitted as accomplished and the will proved without such clause.</p> <p>Attorney's services. Where services have been rendered to persons who are executors for their individual benefit in litigating their rights as legatees, such services are not a proper charge to be allowed them in their accounts with the estate.</p> <p>Construing sections, C. C., 1292; C. C. P., 1616; affirmed, Sup. Court, July 18, 1877.</p>

<p>Notice on Pbobate of Will.—Not waived by minors by au appearance in Court on the day of hearing. The ten days’ notice of hearing must be given in the manner prescribed by statute, namely, by mailing or by personal delivery to the minors of copies of the notice. The Court otherwise does not acquire jurisdiction.</p> <p>Continuance fob the puepose of errare such notice cannot help the defect. The notice, served or mailed, must be for the day specified in the published notice. AU proceedings should therefore be vacated after the petition and a new order of publication given, accompanied by proper service of notice upon the minors.</p> <p>Construing sections, C. C. P., 1303-4-6.</p>

<p>Husband and wife.—Dealings between man and woman as husband and wife, „ such relationship being actually impossible, (there being an undissolved former marriage of the man with another woman), cannot be held to constitute a partnership.</p> <p>Held, that the first wife is entitled to half of common property.</p> <p>Construing sections, C. 0., 55, 155,1402, 2395,</p>

<p>Will—Widow’s shake in estate.—She takes one-half of community eboeeb* AS SUKVIVOK, NOT AS HEIB.</p> <p>“My estate” means the estate subject to TESTAMENTABY DISEOSITION.</p> <p>Renunciation.—Where a renunciation is required by the terms of the will, it must' clearly appear what is to be renounced. To renounce “ all claim to my estate, except under this will,” does not cover widow’s share of community property.</p> <p>Construing section, C. C., 1402.</p>

<p>Devise ob Bequest to “ Chabitable ob Benevolent Society.”—The Boys’ Roman Catholic Orphan Asylum at San Rafael is a charitable and benevolent society, under Sec. 1313, C. 0., and is, as such, entitled to take a bequest.</p> <p>Construing sections, C. 0., 1275,1313.</p>

<p>Wat..—Mental incapacity arising from alcoholism.—A narrative of facts showing a mind impaired from such cause.</p> <p>Undue influence not a factor in arriving at a decision unfavorable to a will made by a person so mentally unsound.</p> <p>Construing sections, C. 0., 1272; C. 0. P., 1312.</p>

<p>Will.—Ologeaphic.—Signatube in this manner: “ This is the last will of Philip Donoho,” at the commencement of an olographic will, there being no subscription at the foot, is sufficient. It is otherwise with a will attested by witnesses, such attestation requiring a subscribing, and not a mere signature. This rule is in conformity with the common law decisions, the civil law of Europe requiring a subscription.</p> <p>It must.appear, however, that the document has been completed.</p> <p>Construing sections, C. C„ 1276-7; C. C. P., 1309.</p>

<p>Will__Undue influence alleged to be exercised by a partner. It must appear that some such influence actually was exercised before the Court can find that the mere fact that a partner is materially benefited by the provisions of a will raises any presumption in that regard.</p> <p>Quaire: Whether instructions of a loose verbal character given to a beneficiary under a will as to the disposition of the bequeathed estate raise the presumption of a trust.</p> <p>Construing sections, C. C„ 1272; C. C. P„ 1312-13-17; affirmed, Supreme Court, ' April 1, 1880..</p>

<p>Evidence__Husband and Wife.—Wife cannot be questioned as to conversations between lierself and husband upon any subject whatever. Such disability as witness is not removed by the death of husband.</p> <p>Will, Inofficious.—Undue influence by wife excluding a son from will.</p> <p>Advancement to heir in father’s lifetime.</p> <p>Charge to Jury.</p> <p>Construing sections, C. C., 1272; C. C. P., 1312,1313,1317,1881.</p>

<p>Distribution.—Before distribution, all claims by executor must be paid.— Executor must resort to estate fob payment of balance in his fayor.— Cannot have distribution and retain a lien.</p> <p>Executor asks that distribution be had to widow and minor child, subject to his lien for balance due him, widow and guardian of minor consenting. Application denied, for the reason that the guardian cannot encumber the estate of his ward for any purpose; and this Court has no authority to distribute without such consent.</p> <p>Construing section, C. C. P., 1665.</p>

<p>Sam oe beal estate.—Sufficiency of notice.—When a sale is set for twelve o’clock noon, July 10th, and the first publication of the notice is made June 19tli, the last being July 9th, the publication, as of twenty-one days, is sufficient.</p> <p>Construing sections, C. C. F., 1547,1554.</p>

<p>Santa Clara County, Probate Court,</p>

<p>Homestead.—Widow, sole member of family.—Unimpeoved lot.—Account.— Non-residents.—Notice.</p> <p>The widow, (who was also administratrix), applied January 26,1877, to the Court, and had allotted to her, as a homestead, a lot of unimproved land worth less than $4,000, which had never been used as a residence, there being no children; and the heirs, brothers and sisters of deceased, non-residents.</p> <p>Subsequently, July 16, 1877, a non-resident sister of deceased applied to have the ' order vacated. The application was denied.</p> <p>Thereafter, the non-resident heirs applied to have the homestead property, which was the only real estate of decedent, and was claimed by them to be separate estate, included in the accounting of the administratrix. This was also denied, the heirs not maldng any showing of additional receipts by administratrix.</p> <p>Construing section, C. O. P.. 1465; affirmed, January Session, 1880.</p>

<p>Will, conditional, to be valid in case of death on a particular voyage, a NULLITY ON RETURNING THEREFROM.</p> <p>A will which recites projected voyage and “ in case of death while performing the journey,” makes certain disposition of property, becomes a nullity on the safe return of testator.</p> <p>Construing section, C. C„ 1281.</p>

<p>Costs.—In ease of costs for any purpose other than the charges of officers appointed hy the Court, a cost hill should he filed as in civil cases.</p> <p>Homestead.—On setting aside homestead, the fees of appraisers, reporters, and interpreter are payable by executor out of estate.</p> <p>Construing sections, 0. C. P., 1033, 1485.</p> <p>Partial Distribution—Community property.—Widow entitled to apply for the same as if she were an heir, notwithstanding the fact that her title is not that of an heir, but was vested in her during her husband’s lifetime.</p> <p>Heir includes widow or survivor, when the word is used touching distribution.</p> <p>Construing section, C. C. P., 1658.</p>

<p>Decree of Distribution conclusive ufon the rights of creditors.</p> <p>Application being made by distributee for the payment to her of balance of estate, under a decree of distribution, certain alleged non-resident creditors ask to be heard, as claimants upon the fund.</p> <p>Held, that the decree of distribution is a finality as to all the creditors of an estate.</p> <p>Construing sections, C. C. P., 1493, 1650.</p>

<p>Contempt, finding of, judgment of impbisonment of exeoutob, until he makes payment of the distributed shares of the estate.</p> <p>Construing sections, C. C. P., 1209,1721.</p>

<p>Support op a minor ward.—Where a guardian possessed of means of his own, marries a minor’s mother, who has separate estate, the support of the minor may be apportioned as a burthen upon the estate of the three persons, the apw portionment to be regulated by the sound discretion of the Court.</p> <p>Construing section, C. C., 209.</p>

<p>Attorney fees.—Payable by the administrator in charge of the estate, THOUGH INCURRED BY AN EXECUTOR WHO HAS VACATED HIS TRUST.</p> <p>When attorneys render services to an estate at the instance of an executor, who thereafter resigns, and is succeeded by. an administrator, such attorneys are entitled to be paid for their services out of the estate notwithstanding the fact that such executor has not reported the item in any account.</p> <p>The attorneys cannot be expected to rely wholly on the personal security of the executor, when the estate has had the benefit of their services.</p> <p>Commissions.—Successive administrations.—Full commissions not allowable until close of administration.</p> <p>Property received from a former executor, on which such executor has been paid commissions, must not be included in estate administered, as a basis of calculation.</p> <p>Full commissions are not allowable until distribution can be decreed.</p> <p>Executor’s commissions on property partitioned in District Court allowable ONLY ON NET BALANCE OF SALE IN PARTITION.</p> <p>Where an undivided interest in lands subject to a mortgage has been set off to the estate in the District Court, and the tract sold to complete the partition and satisfy the mortgage, it is only on the estate’s interest in the surplus, that the executor’s commissions can be charged.</p> <p>Devise.—A devise postponing distribution, but not cheating a trust.</p> <p>Where the language of a will seems to contemplate merely a deferred distribution until the majority of the youngest child, and to create no trust other than executorship, the Court will not distribute the estate and part with the control of it until the designated time shall have arrived.</p> <p>Construing sections, C. C. P., 1616,1618.</p>

<p>Convict under a sentence for life imprisonment civilly dead. Wife in such case is a widow and entitled to take as legatee or devisee where her widowhood is a condition for vesting a legacy or devise.</p> <p>Interest.—Compounded with annual rests.--Executor chargeable with, if he mingles estate’s funds with his own in his business house.</p> <p>Attorney’s pee__When disallowed__Incurred by executor in ms own behalf in litigating a conflict with estate.</p> <p>An executor is not allowed attorney’s fees incurred by him in litigation instituted by him for the protection of his own interests when in conflict with those of the estate.</p> <p>Construing sections, C. C„ 2236-7; C. C. P., 1616; Penal C„ 674.</p>

<p>Husband’s liability fob wife’s subpoet.</p> <p>It is the husband’s primary duty to support his insane wife, notwithstanding the fact that she has abundant estate of her own. It is only when the husband is unable to support his wife that resort can be had for her maintenance to her separate estate.</p> <p>Construing section, C. C., 174.</p>

<p>Gbant of Letters.—Nominee of non-resident widow entitled to letters in preference to the Public Administrator.</p> <p>Under section 1365, C. G. P., the nominee of the widow, being himself competent, is entitled to letters in preference to the Public Administrator, notwithstanding that such widow is a non-resident and therefore herself incompetent to administer.</p> <p>The law at the date of hearing the application governs, not that in force at the date of filing.</p> <p>Construing sections, C. C. P., 1365, 1369; affirmed, Sup. Court, Feb. 27,1880.</p>

<p>Evidence.—Death, pbesuhption of, on distbibution.—In case of heirs who have not been heard from for a long time and who appear to have migrated from last known residence, the Court cannot base any presumption upon enquiries made only at such abandoned place of residence. Further search should be made to trace the missing parties before any action by the Court can be had in the premises looking to distribution.</p> <p>Construing section, C. C. P., 1963.</p>

<p>Letters of administration with the will annexed__In oases op testacy, the GRANT OF LETTERS IS WITHIN THE DISCRETION OF THE COURT.—Where the Public Administrator and a Chinaman, ignorant of our language, laws, and mode of business, who has no intention to permanently reside, or be a citizen of California , are applicants for a grant of letters, in the case of a will which fails to appoint an executor, the Court’s discretion will be exercised in favor of the Public Administrator.</p> <p>Construing section, C. C. P., 1351, 1879.</p>

<p>Jubisdiction. — Decree,.beoitals in, to show that jubisdictional notice has BEEN GIVEN.</p> <p>In order to nullify the effect of recitals in a decree admitting a will to probate showing that notice has been given, where the formal affidavits in that behalf on file are defective, but not antagonistic to the recitals of the decree, it must be shown, not only, that the recitals in question are untrue in fact, but also, that the Court was imposed upon in the evidence heard.</p> <p>Construing sections, C. C. P., 2010-11.</p>

<p>Deceased married woman.—Claim against heb estate on mortgage to secure HER HUSBAND’S DEBT. GROUND FOR ORDER OE SALE.</p> <p>A mortgage given by a married woman to secure the debt of another is “a debt outstanding against the decedent,” and a sale may be ordered in the Probate Court to pay it.</p> <p>Construing sections, C. C. P., 1493, 1536.</p>

<p>Gbant of Letters of Administration.—Non-resident executor has no right to nominate administrator.</p> <p>In case of a will, the Court has discretion as to appointee; and, there being no valid reason against it, prefers to appoint a public officer, who is more subject to the Court’s control as to deposit of funds, than a private person.</p> <p>Construing sections, C. C. P., 1365-9, 1379.</p>

<p>Account of executob.—Abounds fob be-opening account.</p> <p>A minor, who has come of age, permitted to re-open the executor’s account for the reasons:</p> <p>1. Executor, in the capacity of attorney in fact for a claimant, making affidavit to claim, which was subsequently allowed by himself, as executor, and paid by him in the course of administration.</p> <p>2. Executor presents his individual claim, which is allowed by a co-executor, but not by the Judge, until after the time for presentation of claims has expired.</p> <p>Adoption.—Will.—A statement in a will, “A. B., my adopted son” is, prima facie, evidence of such relationship.</p> <p>Right to administeb.—Such a statement is evidence that the party named is entitled to administer, or to request the appointment of another person as administrator. Construing sections, C. C. P., 1365, 1637, 1962.</p>

<p>Account of executbix__Items of taxes and assessments disbursed on account OF BEAD ESTATE SPECIFICALLY BUT CONDITIONALLY DEVISED CHARGEABLE UPON estate.—Rents to be collected by executrix until condition has been FULFILLED.</p> <p>Where a parcel of land has been devised conditioned that the devisee pay to a legatee the sum of one thousand dollars, the title does not pass until the money is paid; and the executrix must, out of the estate, pay the taxes, etc., upon the lot, and is entitled to the rents, until condition complied with.</p> <p>Construing section, C. C. P., 1669.</p>

<p>Will.—Distribution.—Bequest in trust failing by reason of death of beneficiary.</p> <p>A bequest to trustees of a sum of money, the principal and income to be applied in their discretion for the benefit of a beneficiary who dies subsequently to the testator, but before any distribution, falls to the heirs at law or residuary legatee.</p> <p>The words constituting a person residuary legatee “of all my estate not hereinbefore devised and bequeathed,” are to be construed as passing to such person a legacy which has lapsed in the manner and for the reason above stated.</p> <p>Expenses to which the trustees of such bequest have in good faith been subject should be paid out of the trust fund and the residue to the residuary testamentary heir.</p> <p>Jurisdiction of Probate Court.—Devise.—Distribution.—Creation of trust.— The Probate Court has jurisdiction, in cases of devises or bequests which may or may not be illegal, either as creating improper trusts or otherwise, to pass upon the question of their validity; and, finding them invalid, in whole or in part, to distribute the property affected by the illegality either to the heir at law or person otherwise entitled.</p> <p>Distribution subject to mortgage.—A parcel of real estate covered by a mortgage may, should the devisees so request, be distributed to them subject to the mortgage, provided the mortgage creditor waives all recourse to any other portion of the estate for the satisfaction of his claim; and such mortgage debt shall, upon such distribution, in so far as the estate and executors are concerned, be treated as a cancelled liability.</p> <p>Perpetuity.—A devise coupled with power to alienate cannot be considered void as creating a perpetuity.</p> <p>Uncertainty in devise in trust fob charitable purposes.—Such devise is expressly authorized under Sec. 1313, C. G., and it appearing that the mode of execution is left to the “wisdom, faithfulness, and discretion” of the trustees, and that the object of the trust is the advancement of the cause of beneficence and charity, the devise cannot be considered uncertain as to the beneficiaries, since by the discretion of the trustees, aided, it may be, by a court of equity, that which is indefinite may be rendered certain.</p> <p>The limitation of one-third of his estate imposed upon a testator as to his charitable bequests 6?/ Sec. 1313, O. O., means one-third of the gross value not the net value after payment of debts.</p> <p>Tbustee as fubohaseb of claim upon the fund__There is nothing antagonistic to the trust in the purchase by a trustee of a mortgage upon the trust property. Construing sections, Const., (old) Art. XI, 16; (new) Art. XX, 9; C. C., 1313; C. C. P., 1665, 1678.</p>

<p>Evidence.—Witness.—A creditor can testify as to the fact of the indebtedness of decedent to him on hearing of application for letters.</p> <p>Construing sections, O. 0. P., 1365, 1378, 1880.</p>

<p>Notice to cbeditobs based on value of estate.—Where it appears by the inventory and appraisement, that the value of the estate exceeds 510,000, the executor must give a notice for ten months in which to present claims.</p> <p>In such case, a notice for four months already given is a nullity.</p> <p>The executor cannot support his action in giving a notice for four months by showing that property in the inventory and appraisement, is not property of the estate; but he is bound by the appraisal figures.</p> <p>Construing sections, C. C. P., 1443,1490-1.</p>

<p>Res adjudioata.—Grant of Letters of Administration.—What is adjudicated BY THE ORDER__HEIRS NOT THEREBY PRECLUDED FROM SUBSEQUENT DENIAL. THAT THE ADMINISTRATOR IS NOT THE HUSBAND OF DECEDENT.</p> <p>In granting letters, the only questions decided by the Court are, whether there is property; whether the Court has jurisdiction; and whether the party applying is competent.</p> <p>When letters have been granted to a person, whether claiming the grant as heir or creditor, the question of heirship or of the validity of the claim as creditor, must be passed upon in an independent proceeding; there being no contest to act as an estoppel.</p> <p>Construing section, C. C. P., 1365.</p>

<p>Pleadings.—An opposition to the probate of a will on the ground of menace, undue influence, etc., should state the facts constituting such improper conduct.</p> <p>Will.—A mere reference to extraneous papers in an instrument offered for probate does not necessarily make such papers a part of the wiU for the purposes of a probate record.</p> <p>Construing section, C. C. P., 1312.</p>

<p>Administration, where the alleqation of the existence of estate is only COLORABLE, DENIED.</p> <p>There can he no grant of administration where the apparent motive of the application is to clothe some one with the legal status of administrator, merely to mate him defendant in a suit to quiet title, there being no estate, other than personal clothing which may not be actually in existence at the date of the application.</p> <p>Construing section, C. O. P., 1371.</p>

<p>Will__Signatube. — Name of pboposed testatob wbitten by anotheb pebson NOT A WITNESS TO THE WILL AND NOT IN THE PBESENCE OF THE WITNESSES.</p> <p>Held, that the testator should have called the attention of the witnesses to the fact that he had signed the document; and that it had been subscribed by him or by his authority.</p> <p>Construing section, C. C., 1276.</p>

<p>Devise.—Pbecatoby wobds.—The words, “To my beloved wife the whole of my property, for her own use and benefit and to maintain and support my said children with, the same to be hers absolutely,” do not create a trust, but vest the wife with the absolute estate.</p> <p>Construing section, G. C., 1322.</p>

<p>Bequest to a religious corporation is void, under Sec. 1275, 0. Code.</p> <p>Construing section, C. G., 1275.</p>

<p>Devise.—Pbeoatobv wobds.—“ To my beloved wife, Emelie Glass, to have and to hold the same or any parcel thereof, with privilege to dispose of the same or any portion thereof, for her use and interest, or those of our beloved childrenconstitute the wife, devisee, a holder of the estate in fee and full property. The language is precatory, and cannot be held to create a trust in favor of the children.</p> <p>Construing sections, C. C„ 1322-25.</p>

<p>Pbactice.—Contest on fbobate of will.—The right of heirs to revoke probate of will within the year specified, is the same whether the issues were tried by a jury or by the Court sitting without a jury.</p> <p>An appeal from a probate works a stay of proceedings.</p> <p>Construing sections, .0. C. P., 946, 1327.</p>

<p>Custody of the bebson of a ramos.—The father is entitled to such custody, as 'against any person other than the mother; subject, however, to the paramount duty of the Court to consider in awarding such custody, whether it will be “ for the best interest of the child in respect to its temporal and its mental and moral welfare.”</p> <p>A father, by leaving a child for any period in the care and custody of another, does not, by that act alone, forfeit his right to re-enter upon his right and duty.</p> <p>In granting letters to the father, the Court may incorporate in the order such stipulations and directions binding the father in the matter of the personal custody of the child, as may beflt its temporal and moral welfare.</p> <p>An unsettled mode of life and a harsh disposition are matter's to be considered in the light of objections to the granting the custody of a minor to a father when a happier mode of disposing of the child offers itself.</p> <p>Construing sections, O. 0., 197, 213, 246, 251; C. C. P., 1751, 1755.</p>

<p>Sale of heal estate.—Variance between written bid and order and notice of sale. A purchaser who has filed a written bid which is, by its conditions, at variance with the order and notice of sale of real estate, but to whom the real estate has been confirmed, in accordance with his bid, is not entitled to have the decree of con. firmation vacated and himself released from his contract on the ground of the variance.</p> <p>Construing section, C. C. P., 15.;4.</p>

<p>Will__Pretermission of illegitimate child.</p> <p>An illegitimate child inherits from her mother, (there being no mention of her in will), as pretermitted child.</p> <p>Construing sections, C. C., 1307, 1387.</p>

<p>Account.—Moneys received by guardian in a foreign jurisdiction must be accounted for here by guardian unless he shows positively that he has accounted for the same funds abroad, any presumption arising being, that the foreign authorities have permitted the transfer of the funds hither for the purpose of having them subject to the jurisdiction of the common domicile of guardian and wards.</p> <p>Construing sections, C. C. P., 1773-4.</p>

<p>Lettebs of administration__Persons entitled.—As against the Public Administrator, under section 1365, O. 0. P., the nominee of a widow, though she be a non-resident, is entitled to the preference in the issuance of letters as a matter of right, the Court having no discretion in the premises.</p> <p>Construing sections, C. C. P., 1365-69.</p>

<p>Family allowance.—Chattel mortgage on personal property to which widow IS ENTITLED, POR MAINTENANCE.—COURT MUST ALLOT IT TO WIDOW AND IGNORE LIEN.</p> <p>The widow aslcs that certain household furniture, on which there is a chattel mort- • gage, should he set apart to her. The mortgage holder objects, and prays that it be sold to satisfy the lien.</p> <p>The Court must deliver the property to the widow and leave the creditor to enforce his claim elsewhere.</p> <p>Construing section, C. C. P., 1465.</p>

<p>Jurisdiction.—Residence inferred from the acts of decedent. His conflicting ASSERTIONS AS TO HIS INTENT.</p> <p>Decedent, who died in this city and county, had a farm at Livermore; but for certain secondary objects, had his name enrolled on the Great Register here, and voted here; also, became member of a lodge, wherein residence here was essential; and he made declarations to that effect. Sometimes, he spoke of Livermore as his home; sometimes, of San Francisco. There were reasons for the Court to believe that his declarations as to his residence in San Francisco were not sincere; and that his entry on the Great Register was a fraud by him.</p> <p>Held, that Alameda County was his residence; and that proceedings here should be vacated.</p> <p>Construing sections, Pol. C., 52; C. C. P., 1294.</p>

<p>Investment of funds.—1. Guardian is not responsible for the loss of funds occurring by reason of his depositing them for safe-keeping in a bank, except when it was known that such bank was unsafe.</p> <p>2. When, however, a guardian loans out funds imprudently and without security, it is his duty to assume the loss.</p> <p>Construing section, 0. C\, 2261.</p>

<p>Distribution.—Assignee of deceased heib entitled to have assigned property DIRECTLY DISTRIBUTED TO HIM, IN SATISFACTION OF A DEBT HELD BY THE ASSIGNEE AGAINST HEIR AND SECUBED BY SUCH ASSIGNMENT.</p> <p>But the Court cannot, to facilitate the transaction, order a sale of any real estate; as that would be in the province of the Court having jurisdiction of the estate of the deceased heir. ¡</p> <p>Nor can the Court distribute property to the holder of an assignment coupled with a defeasance in case of payment of the debt; inasmuch as such a transaction would be more in the nature of a mortgage than of a devesting of legal title.</p> <p>Construing section, C. C. P., 1678.</p>

<p>Devise.—A future contingent interest vests in beneficiary so as to be the SUBJECT OF A SUCCESSION.</p> <p>Administrator’s account.—The account of an administrator cannot be settled until there has been an appraisement of the property in the inventory on file.</p> <p>Construing sections, C. C., 678, 680, 688, 690, 693-5, 699, 1384.</p>

<p>Claim against estate.—Interest on.—Waived by a stipulation of waiver endorsed on claim of any demand beyond a sum named.</p> <p>Construing section, C. C. P., 1490.</p>

<p>Residence of deceased as affecting jurisdiction of estate.</p> <p>Wife’s residence the same as the husband’s.</p> <p>Two places of sojourn.—A narrative of facts upon which the Court fixes the place of residence.</p> <p>Construing sections, Pol. C., 52; C. C. P.. 1294.</p>

<p>Bight to administer.—The Public Administrator has a right to administration only in cases of intestacy. In estates of testates, the Court has a discretion in the appointment.</p> <p>Construing section, C. C. P., 1365.</p>

<p>Bond of adhinistbatob.—Property pledged by decedent.—In fixing the amount of an administrator's bond, which should cover double the value of the personal estate, property of estate in the hands of a pledgee, should be rated at its value over and above the debt intended to be secured by the hypothecation, such value being the only interest which the estate can be said to have in the pledge.</p> <p>Construing section, C. C. P., 1388.</p>

<p>Devise of property subject at death of testator to mortgage. The devisee entitled to have the mortgage which hears interest paid out of the moneys of the estate under Sec. 1513, 0. 0. P.</p> <p>Construing section, C. C. P., 1513.</p>

<p>Marriage contract.—Acknowledgment, an essential to its execution.</p> <p>Distribution__Probate Court has a right to consider a properly executed marriage contract in determining manner of distributing estate.</p> <p>Contract affecting final disposition of property as between husband and WIFE, LAWFUL.</p> <p>A contract signed before marriage, but not acknowledged until eight years after. Held, to be a nullity (Hittell, General Laws, I, 3576.)</p> <p>Husband and wife.—Separate property.</p> <p>Beal estate (with its increased value caused by locality and surroundings), which was property of either party before marriage, is separate estate, notwithstanding the fact that community moneys have been expended thereon; but such expenditures may, in a proper case, be a claim chargeable upon such separate estate.</p> <p>Expenses of administration when of a general nature should be assessed pro rata upon the community and separate estate of decedent. Expenses attaching specifically to particular pieces of estate should be chargeable against such estate.</p> <p>Marshalling of assets for the payment of debts and legacies.</p> <p>Construing sections, C. C„ 158-9, 162-3, 178-9; C. C. P., 624, 645, 1665.</p>

<p>Jurisdiction to construe a will.—The Probate Court has jurisdiction to construe the language of a will so as to determine the proper persons or classes of persons to whom the estate shall be distributed and the character of the estate or interest such persons or classes of persons are to take therein, the decree of distribution being the charter by which they hold the property, and armed with which, they may apply to a general court of equity for aid or protection.</p> <p>Interpretation of words.—The words used in a bequest, “ to those of the before mentioned children who have attained the age of twenty-one years,” include only those children of such age at testator’s death; and those under that age at the date of the death are excluded.</p> <p>Construing sections, C. C„ 1336-7-41; C. C. P., 1665-6.</p>

<p>Revocation of Letters of Administbation of Public Administrator, Gbotjnds: Failure to file inventory, and to deposit funds in Couniy Treasury as required by law.</p> <p>Construing sections, C. C. P„ 1729, 1737.</p>

<p>Distribution, where heir or devisee dies pending administration ; and the ESTATE OF SUCH HEIR OR DEVISEE IS UNSETTLED AT THE TIME OF DISTRIBUTION.— An executor or administrator is not a proper person to receive title and transmit the same. His duty and connection with estate lies simply in its administration for the payment of the debts. He cannot, therefore, properly be made a distributee of another estate. The true course should be to administer the estate of the heir or devisee, and distribute the interest which such decedent may have in the former estate to the proper parties, who may, when thus armed with their decree, apply for the share to which they may thereby be entitled in the estate of the first decedent as representing an heir or devisee thereof.</p> <p>Construing sections, C. C. P., 1665-6-7.</p> <p>Will.—Distribution.—Survivor.—Devise to two beneficiaries and to the survivor in case either died before distribution.</p> <p>Testatrix devised all her estate to her two daughters, share and share alike, with the provision that in case of the death of either before distribution, the survivor should take the whole estate. One daughter made a conveyance of her estate to a stranger and died before distribution.</p> <p>Held, that the surviving daughter took the entire estate to the exclusion of grantee of deceased daughter.</p> <p>Construing section, C. C., 1345.</p>

<p>Legitimacy, conclusive presumption of, from uninterrupted intercourse of ■ HUSBAND AND WIFE. ADOPTION: ACTS OF A PARAMOUR IN RECOGNITION OF HIS PATERNITY OF THE OFFSPRING OF AN ADULTEROUS WIFE.</p> <p>A claim, as pretermitted heir, cannot he maintained against the estate of a testator, by a child, the offspring of an adulterous wife, who was cohabiting with her husband, on the ground that such unchaste wife was the mistress of the deceased, and that he, at times, made statements tending to admit that he was the chilcPs father; but such child must be deemed legitimate offspring of the husband and wife.</p> <p>Nor can such loose acts of recognition of child be deemed an adoption.</p> <p>Limitation of one year to revoke probate.—When does it expire?</p> <p>A petition to revoke probate of a will admitted December 2, 1878, was, late in the evening of December 2, 1879, placed in the hands of the Judge with request for a citation. The Judge delivered it to the clerk the next day directing it to be filed as of December 2, 1879, and signed an order as of the date of filing December 2, 1879. The citation was not issued for several days.</p> <p>Held, that the paper was filed in time; and that it was not necessary that the citation should be actually issued within the year.</p> <p>Construing sections, C. C„ 193,195, 230; C. C. P„ 1327, 1333,1962.</p>

<p>Bevocation of probate__Petition for. — Demurrer to such petition.—Where THERE IS ONE PROPER ALLEGATION IN A PETITION FOR REVOCATION, AS THAT THE testatrix was not of sound and disposing mind at the date of execution of the supposed will, a general demurrer will be overruled, such allegation being an averment of a fact.</p> <p>But in alleging restraint, undue influence, or fraudulent misrepresentation, the facts constituting the restraint, undue influence, or fraudulent misrepresentation, must be set forth in the pleading.</p> <p>The persons who exercised the improper restraint or influence or made the misrepresentations need not be actually designated in the petition, inasmuch as they may be unknown to petitioner, who may still be aware that the will was a nullity by reason of such circumstances and conduct.</p> <p>Construing sections, O. 0. P., 1312, 1317, 1327, 1329.</p>

<p>Will__Subsequently discovered codicil.—Limitation to probate of—Unless contested within the year prescribed by statute, the probate of a will is absolute. The proposing of a codicil for additional probate is a contest; and such codicil should be offered within the year; or it is barred, save as to persons under disability.</p> <p>Construing sections, C. 0., 14, 1287; C. C. P., 1327, 1333, 1908.</p>