Volume 2 — Coffey's California Probate Decisions (1880–1915)

<p>Olograph.—An Instrument Testamentary in Character, if proved to be entirely written, dated and signed by the author, is established as an olographic will.</p> <p>Death—Presumption from Unexplained Absence.—In addition to the legal presumption arising from unexplained absence for seven years, certain facts have been noticed by courts as grounds on which inferences of death may rest. But no general or certain rule can be established; each case must be decided upon the facts, and the probabilities that life has been destroyed.</p> <p>Death—Presumption When Vessel. Fails to Betum.—The fact of death may be found from the lapse of a shorter period than seven years where one sails in an unseaworthy vessel on the night of a violent storm and the vessel is unheard of for a long time after the voyage should have been accomplished.</p>

<p>Guardianship.—Where an Insane Person, While Sane, has selected a conservator of her property, the court should regard such selection as the expression of the wishes of a competent person, and, where the management of such agent has been prudent and judicious, the best interests of her estate will be promoted by continuing it in his hands.</p> <p>Guardianship.—A Divorced Husband is a Stranger to a Proceeding for the appointment of a guardian of his former wife, an insane person, except so far as he is concerned in the succession of the children of the marriage to her estate.</p> <p>Guardianship.—In an Application by a Divorced Husband for letters of guardianship of the person and estate of Ms former wife, an insane person, the decree of divorce must be taken as correct and conclusive.</p>

<p>Insanity of Testator—Opinion of Witness.—A witness called on behalf of the proponent of a will to prove the sanity of the testator, who is not an expert, is not qualified to give his opinion where he did not know that about the time of the execution of the will the testator had been adjudged dangerous to be at large, and was sent to the home of the inebriates, and shortly after to the state insane asylum; all he knew being based upon the fact that he never heard the testator’s insanity questioned, and saw nothing particularly wrong about his mind.</p> <p>Insanity of Testator.—Upon the Issue of Sanity Raised by a Contest to the probate of a will, the court is concerned only with the fact of insanity, whatever cause the insanity may have proceeded from being immaterial.</p> <p>Insanity of Testator.—The Instrument Propounded as a Will should itself be considered in connection with other evidence, upon the issue of the testator’s sanity.</p> <p>Insanity of Testator—Injustice of Will.—Where the testator’s estate was small, and he left nothing to his wife, who had been his spouse for twenty-five years, and was aged and infirm, remitting her to her community rights, but bequeathed all his estate to strangers, this fact may be considered as evidence in connection with other facts and testimony, upon the issue as to the insanity of testator.</p> <p>Insanity of Testator—When Established by Evidence.—Where a will gives all the estate of the testator to strangers, remitting the widow to her community rights, the probate thereof should be denied if it appears that the testator while young became insane and was confined to a straight-jacket for six months; that he had a brother and cousin who were insane; that he embraced spiritualism a few years before his death and did many strange things under alleged spiritualistic influences; that he had a great many peculiar beliefs; that less than a month after making his will he was sent to the home of inebriates as dangerously insane, and nine days thereafter was formally adjudged insane and sent to the state asylum.</p>

<p>Reference of Claim—Objection to Evidence.—Assuming that section 1880, Code of Civil Procedure, applies to the ease of a referred claim against a decedent’s estate, yet unless the objection to the claimant’s evidence is taken before the referee, it cannot be urged afterward.</p> <p>Reference of Claim—Sufficiency of Evidence.—Where a claim presented against a decedent’s estate is, by stipulation of the executor and claimant, referred to a designated person “to ascertain its accuracy and report the same,’’ and, upon the reference, the referee is notified by the executor that he has no testimony to offer and does not desire to be present at the examination, and the claim is fully substantiated by the oral testimony of the claimant, and bills and memoranda, and witnesses in corroboration of his evidence, an objection to the referee’s report on the ground that the claimant’s evidence was inadmissible under section 1880, Code of Civil Procedure, cannot be sustained.</p>

<p>Will Contest.—A Contest of Probate of a Will Partakes of the Nature of a civil action; its issues and results being determined and applied in like manner.</p> <p>Special Administrator.—Two Items for Expert Witnesses were in this case disallowed in the account of a special administrator.</p> <p>A Special Administrator is Without Power to Incur Expense in and about a will contest.</p> <p>A Special Administrator has no Authority to Make Expenditures as to claims having their origin in decedent’s lifetime.</p> <p>Special Administrators are Entitled to Counsel in the Administration of their trust.</p> <p>Special Administrators are Entitled to Compensation for services •performed in discharging the duties of their trust.</p> <p>Will Contest—Allowance for Expenses.—There is a Distinction Between a Successful and an unsuccessful contest of a probate of will, as to the proponent’s right to expenses incurred. Where a purported will has been refused probate, and so declared invalid, no rights or duties thereunder can be pretended.</p> <p>Will Contest—Allowance for Expenses.—There is no warrant in the statute for an allowance of expenses incurred by the proponent of a purported will which has been refused probate, and jurisdiction in such matters cannot be sought for outside the code.</p> <p>Will Contest—Costs and Counsel Fees.—Section 1332, Code of Civil Procedure, as to costs of a probate contest, if ineluding counsel fees, is applicable solely to contests after probate first had,' and does not embrace a contest upon the original propounding of a purported will.</p>

<p>Reference of Claim—Manner of Conducting.—Where an executor or administrator doubts the correctness of a claim presented to him, and a reference is had pursuant to section 1507, Code of Civil Procedure, the reference must be conducted as provided in section 1508 and sections 638-645, Code of Civil Procedure.</p> <p>Reference of Claim—Testimony Against Executor.—The reference of a doubtful claim is "a proceeding prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person," and subdivision 3, section 1880, Code of Civil Procedure, applies, so that the claimant prosecuting cannot testify "as to any matter of fact occurring before the death of such deceased person."</p>

<p>Motion to set aside judgment admitting will to probate.</p>

<p>Testamentary Capacity—Undue Influence.—While the law will not presume the exertion of undue influence from the mere fact of opportunity or a motive for its exercise, nor permit it to be found upon suspicion, yet proof must generally be gathered from the circumstances of the case, for very seldom is a direct act of influence patent, as a person intending to control another’s action, especially as to a will, is not apt to proclaim that intent; and among the circumstances from which proof must generally be gathered of undue influence exercised upon a testator are: Whether he had formerly intended a different testamentary 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 alleged will is such a one as would probably be urged upon him by those surrounding him; whether the persons who surrounded him were benefited by the alleged will to the exclusion of formerly intended beneficiaries.</p> <p>Acknowledgment of Will—Failure of Memory of Witnesses.—The failure of the attesting witnesses to the will involved in the present case, they being the nurse and physician attending the alleged testatrix at the time of the execution of the instrument, to recollect whether she acknowledged the paper as her will, is adversely commented on by the court, especially in“view of the fact that the instrument purports to have been executed at a recent date and in the presence of impending death.</p> <p>Testamentary Capacity—Clinical Chart of Nurse as Evidence.—A clinical chart kept by a nurse; showing, by entry made therein by her, that she administered a powerful opiate to her patient a short time before the patient is alleged to have executed a will, is, in conjunction with the testimony of the nurse as what must have been the stupefying effect of the drug, strong evidence of the condition of the mind of the testatrix at the time of the alleged testamentary act.</p> <p>Testamentary Capacity—Person in Last Sickness.—The testatrix in this case having executed a will on the last day of her life, at the age of nearly eighty years, the court finds, from the combined effect of her sickness, the frequent administration of opiates, the intensity of her pains, and the other influences acting upon her will and understanding that she must have been incapable of voluntary and intelligent disposition at the time.</p> <p>Testamentary Capacity—Undue Influence.—The court finds from an examination of the evidence in this case that the will dated October 21st was inspired by the proponent, that he was the informing spirit of that testament, and that it was his will rather than of the nominal testatrix.</p>

<p>Revocation of Probate—Jurisdiction of Court.—The jurisdiction of & probate judge relating to the revocation of probate is wholly statutory, and in exercising it, he can in no way alter or disregard the provisions of the statute.</p> <p>Revocation of Probate—Executor as a Party.—It seems the executor is not a necessary party to a proceeding for the revocation of the probate of a will, instituted after a final decree of distribution is made and he has been discharged.</p> <p>Revocation of Probate—Nature of Proceeding—Citation.—A proceeding to revoke the probate of a will is a proceeding in rem and not inter partes; the court already has jurisdiction of the res, and the office of citation is not, like a summons, to give jurisdiction, but to give all parties an opportunity to appear and take sides.</p> <p>Revocation of Probate—Nature of Proceeding—Discharge of Executor.—Under sections 1327 and 1328 o'f the Code of Civil Procedure, providing for the revocation, upon a citation to the executor and others, of the probate of a will within one year after probate, an application therefor may be made notwithstanding a final decree of distribution has been made and the executor discharged. The statute keeps alive "ad interim the character of the executor for the purpose of hearing the application for revocation.</p> <p>Revocation of Probate—“Proceeding” or “Action.”—An application to revoke the probate of a will is a “proceeding” and not an ■“action.”</p> <p>Revocation of Probate—Subject Matter and Jurisdiction.—The subject matter in an application to revoke the probate of a will is the same as the subject matter of the proceeding to probate the will. The ultimate issue, to wit, whether the will should stand as probated, is the same.</p>

In this case the inventory and appraisement was, according to the custom of the court in probate, handed by the clerk, upon filing, to the judge, and the latter noticing that the appraisers’ return showed a service of eighty-one days, whereas the bill was $4,500,—that is, $1,500 for each appraiser,—ordered that a reference be had to examine into the services performed by the appraisers, and the amount claimed by them as compensation, and appointed Timothy J. Lyons as referee.

<p>Jurisdiction of Probate Court—How Far Extends.—Prior to the amendment of 1895 to section 738 of the Code of Civil Procedure, jurisdiction to determine the rights of heirs, devisees and legatees, and the validity of testamentary trusts, appears to have been vested exclusively in the superior court sitting in probate.</p> <p>Trust—Determining Validity Prior to. Probate of Will.—Under section 738 of the Code of Civil Procedure, as amended in 1895, the validity of a testamentary trust in real estate may be determined in advance of the probate of the will, in a suit to quiet title or to determine an adverse claim.</p> <p>Appeal—Affirmance Without Opinion.—The affirmance of a judgment by an appellate court, although without an opinion, is a determination that the objections argued against it are unavailing.</p> <p>Probate Jurisdiction—Regulation by Legislature.—The probate jurisdiction of the superior court is essentially under the control of the legislature, which may enlarge or restrict it.</p> <p>Charitable Trusts—Parties in Suit to Quiet Title.—In a suit to quiet title, which involves the validity of a charitable trust created by will, the court held that, in the circumstances of the case, the primary trustees sufficiently represented the beneficiaries, and that neither the attorney general nor the ultimate trustees in being were necessary parties defendant.</p> <p>Charitable Trusts—Invalid Accumulations.—Section 723 of the Civil Code, which provides that "all directions for the accumulation of the income of property, except such as are allowed by this title, are void, " applies to accumulations for charities.</p> <p>Charitable Trusts—General Charitable Intent.—The testamentary trust involved in this case is found by the court not to evince a "general charitable intent" which will be given effect so far as is consistent with the rules of law, if the mode prescribed is Unlawful.</p> <p>Charitable Trusts—Purposes "Charitable or Other."—A testamentary trust which contemplates purposes "charitable or other" cannot be sustained as a charitable trust.</p> <p>Charitable Trusts—Noneharitable Purposes.—If some of the purposes of a testamentary trust are charitable, while some are not, no part of it is sustainable as a charitable trust, if the bequest violates the law regulating the validity of private trusts.</p>

Joseph Gordon died February 11, 1897, or twenty-six days before the enactment of March 9, 1897, amending the collateral inheritance tax statute, went into effect. He left a will disposing of all his estate, and giving it all to his niece, excepting only $14,500 in pecuniary legacies to other collateral relatives and $1,400 in several small legacies to charities.

<p>Will Contest.—The Buie that a Complaint must State the Cause of action in ordinary and concise language applies to the written grounds of opposition to the probate of a will. The facts should be stated concisely and with certainty, apart from all hypotheses, arguments and conclusions of law; and when once made the statement should not be repeated.</p> <p>Will Contest—Misjoinder of Causes of Action.—Charges of fraud and duress constitute different causes of action, and should be stated separately.</p> <p>Will Contest—Charging Conspiracy.—Where one is charged in a pleading with conspiracy with other persons, he has a right to have the names of the alleged conspirators made known to him.</p>

The subject matter of this opinion concerned property in Mexico, which the administrator and his attorney believed to be of great value.

<p>Inheritance Tax—Bequest for Masses.—Bequests for masses are for charitable purposes, and therefore exempt from the operation of the collateral inheritance tax act of 1899.</p> <p>Inheritance Tax—Bequest for Altar.—A bequest to beautify the altar of a church is for a charitable purpose, and therefore not subject to the collateral inheritance tax act of 1899.</p>

<p>Will—Contest on Ground of Forgery.—The probate of a will is permitted to stand in this case as against a charge that the instrument is a forgery, the charge being based on the theory, which finds some support in the evidence, that the testator was not at the place where the will was executed at the time of its execution.</p>

<p>Word “Heirs” not Technically Construed in Will.—The word “heirs” in a testamentary instrument will not be construed technically, if the intention of the testator as disclosed by the context will thereby, be defeated and a portion of the will rendered inoperative.</p> <p>Remainders—When not Based on Double Contingency.—Under a will which reads: “I give to my daughter all the property of which I die seised, remainder to the heirs of her body in fee simple, but in the event of her death without surviving heirs of her body, I direct said remainder to be distributed to my heirs then surviving according to the law of descent at the date of-my daughter’s death,” the remainders cannot be attacked as invalid on the ground that the contingencies on which they depend are double or constitute a possibility upon a possibility; they are alternate, and respectively depend on only one contingency.</p>

<p>Substitutional Legacies.—Where a Decedent Leaves Two Testamentary Instruments which are admitted to probate as his last will, in each of which he bequeaths to several persons, respectively, the same amounts, and denominating each instrument as his last will, such language constitutes intrinsic evidence of the testator’s intention, and the legacies in the latter instrument are substitutional for those contained in the former.</p> <p>Charities—One-third of Estate—Conflict of Laws.—Where a testator leaves real and personal property in California and real property in other states, and devises one-third of his estate to charities, the courts in this state cannot take into account the property situated beyond their jurisdiction in determining what one-third of the estate is.</p> <p>Charities—One-third of Estate—How Determined.—The word “estate,” as employed in section 1313 of the Civil Code, means estate in California. The one-third of the estate which may be given to charity is one-third of the distributable assets of the estate.</p> <p>Residuary Clauses.—Where Two Testamentary Instruments are Admitted to Probate as the last will of the testator, each instrument in itself being complete as a will and each containing a residuary clause, the two clauses are inconsistent and the latter clause prevails, unless it fails in whole or in part, in which event the residuary clause of the prior will operates.</p> <p>Residuary Clauses—Charities.—In this Case it is Held that the Residuary legatees under a former will take the residuum of the estate, which is beqeathed to charities by the residuary clause of a latter will, but which they are unable to take by virtue of the restrictions imposed by section 1313 of the Civil Code.</p> <p>Wills—Several Instruments.—The Rule of Construction is substantially the same where there are several wills to be harmonized, as where there are several clauses in the same will and codicils.</p> <p>Wills—Transposition of Order of Bequests.—Where it appears from the entire language of a will that the testator’s intention will be rendered clearer by transposing the order of the bequests, the court will construe the bequests as though the testator had written them in the transposed order.</p> <p>Wills—Several Instruments.—Two testamentary instruments are to be taken and construed together as one instrument.</p> <p>Wills.—All the Parts of a Will are to be Construed in relation to each other, so as, if possible, to form one consistent whole; but where several parts are wholly irreconcilable, the latter must prevail.</p> <p>Wills.—A Prior Will Remains Effectual so Far as Consistent with the provisions of the subsequent will.</p> <p>Charities.—The Excess of an Estate All Over and Above the One-third to charities goes to the residuary legatee or devisee, preferably to the next of kin or heirs at law, according to the provisions of section 1313 of the Civil Code.</p> <p>Intestacy.—The Very Fact of Making a Will Raises a Very Strong Presumption against any expectation on the part of the testator of leaving any portion of his estate beyond the operation of his will.</p> <p>Intestacy—Intestacy is not Favored in Law.—The law prefers a construction of a will which will prevent a partial intestacy to one which will permit such result.</p>

<p>Community Property.—The Declaration of a Testator in His Will that the property devised is his separate estate cannot be considered as evidence that it is such.</p> <p>Community Property—Products of Foreign Beal Estate.—Where a married man picks orehilla in Mexico from land owned by himself and his copartners and ships the product to market in England, and the returns are remitted to him at a point over one thousand miles from the place of production, these products together with real estate purchased with their proceeds in California are community property.</p> <p>Community Property—Profits of Foreign Land.—The rule that property purchased with the rents and profits of land which is the separate estate of the husband becomes likewise his separate property is restricted to eases where the purchase money is the proceeds of land used in the ordinary manner, and does not extend to cases where the products are shipped to a distant country and used in a business venture.</p> <p>Community Property—Conflict of Laws.—The rents and profits of Mexican land held by a resident of California are subject to the laws of Mexico, and by those laws they are community property.</p> <p>Beal Estate—Conflict of Laws.—Beal estate in Lower California is subject to the Mexican law, even if it belongs to foreigners.</p> <p>Community Property—Conflict of Laws.—Lands Purchased in a community property state with funds derived from real property acquired in a common-law state become the separate property of the husband, even if the funds were acquired in the other state under circumstances which would have made the land from which it was derived community property.</p> <p>Community Property.—Money Borrowed by a Married Man and not secured by his separate property is community property.</p> <p>Wills—Intention of Testator.—It Makes no Difference What Language is Used in a will, if the testator’s intention can be determined it will be sacredly enforced.</p> <p>Wills.—The Intention of a Testator must be Ascertained from the words of the.will itself; it is not what the testator meant, but what his words mean. The intention to be sought is not what may have existed in his mind, but what is expressed in the language of the instrument itself.</p> <p>Wills.—The Word “Leave” in a Will, as applied to the subject matter, prima facie means a disposition by will.</p> <p>Wills—Injustice of this Disposition.—The intention of a testator, if lawful, must be given effect, however unjust it may appear to the court.</p> <p>Wills.—A “Limitation” is Particularly Defined to be a qualification of an estate" given; “words of limitation are words which mark out the estate to be taken by the grantee.”</p> <p>Wills—Cutting Down Fee.—Words of Command Addressed by a "Testator to devisees are as ineffectual to reduce a fee to an estate for life as precatory or explanatory words; such words are not enough to establish an intention that is not gathered from the operative words upon the face of the will.</p> <p>Wills—Necessity for Operative Words.—A devise cannot be created without the use of operative words.</p> <p>Annuities—Failure of the Fund,—Where annuities are payable from the rents of a building, and the building is sold during the course of administration, the rights of the annuitants are.measured by the rule that when the funds out of which annuities are payable fail, resort may be had to the general assets as in the case of a general legacy.</p>

Max H. Kershow died in San Francisco, state of California, on June 26, 1901. On September 6, 1901, Hall McAllister and Rhea Gettings presented to the court a document .bearing date the sixth day of April, 1901, and purporting to be the last will and testament of the decedent, together with a petition for the- probate thereof and for the appointment of petitioners as executor and executrix thereof respectively.

<p>Wills—Intention of Testator—How Determined.—In construing a will the aim of the court is to arrive at the intention of the testator by an examination of the will, and the circumstances surrounding its execution, and the age and experience of the testator.</p> <p>Wills.—The Provisions of the Will in this case show that the testator divided his property into two classes: First, the property held jointly with his aunts; and, second, all other property.</p> <p>Wills—Technical Words—When Given Popular Meaning.—When a testator is not versed in the meaning of technical terms, it should be presumed that he used his words according to their ordinary meaning and in their popular sense. The words of a will should not be subjected to such a strain as to force them out of the natural channel of construction into the narrow legal groove in which the testator’s mind was clearly not accustomed to travel.</p> <p>Wills—Technical Words—When Given Their Popular Meaning.—It is the duty of the court to look for general intent of the testator, to put itself in his place, to regard coexistent circumstances, and, if a technical construction of words and phrases is at variance with the obvious general intention, to apply a rule of interpretation which will give to language its ordinary effect.</p> <p>Wills—Construction.—While It is True that a Will Takes Effect Only from the Date of the death, it may be construed according to the circumstances and the facts existing in the mind of the testator at the date of execution. Whenever a testator refers to an actual existing state of things, or to what he considers to be such a state, his language is referential to the date of the will and not to what may exist at the time of his death, which is a prospective event.</p>

Francisca Ackerman died on September 17, 1885, and on December 9, 1885, Charles Ackerman, her surviving husband, was appointed administrator of her estate, which consisted entirely of her separate property. On July 21, 1888, he filed a petition for a homestead out of the estate.

<p>Mary Herold died intestate on June 20, 1891, leaving a number of minor children who were her sole heirs. Her husband had died before her. On June 23, 1891, John D. Feldmann and Conrad "Vieréckt filed their petition for letters of guardianship of the persons and estates of the minor children. They were appointed such guardians, and letters of guardianship issued to them on July 1, 1891, and on July 3, 1891, they filed a petition for letters of administration on the estate of the deceased mother. On June 29, 1891, A. C. Ereese, the public administrator, filed a petition for letters of administration on the estate of the decedent.</p> <p>The petitions of the guardians and of the public administrator were heard together on August 3, 1891.</p>

<p>Executor.—No Executor of an Executor is, as such, entitled to administer on the estate of the first testator.</p> <p>Executor.—Upon the Death of the Sole Executor of a will, letters of administration with the will annexed of the estate of the testator left unadministered must be granted as designated and provided for in Code of Civil Procedure, section 1365.</p> <p>Executor.—Where an Executor Died Pending Administration, and his executor waited until seven months after his death before applying for letters of administration with the will annexed on the estate of the first t.estator, and the public administrator filed a counter-petition four days later, and where it does not appear that the public administrator was ever notified of the death of the executor of the first testator, the contention that the public administrator had waived his right to letters by his laches is untenable.</p>

<p>Wills.—Precatory Words are Given only their natural force.</p> <p>Wills—Precatory Words.—Where a testator (who is a lawyer) devises property to a nephew and to the nephew’s son, and recommends to the nephew to leave his portion thereof, after his own death and the death of his wife, in trust for such son and to his children or descendants, if any are living at the time of the death of the son, and if there are none so living then to Harvard College, the word “recommend" is not equivalent to a direction or command, but is only a suggestion, which the beneficiary is free to follow or ignore.</p>

As will appear from the opinion, the question before the court was whether an attorney fee could be taxed as costs by the successful contestants to a will after original probate.

The opinion of the court was delivered upon a motion to tax costs. The motion was made upon behalf of the proponents of the will, as to the memorandum of costs and disbursements filed by the contestants upon the revocation of the original probate.

Bertha Berton died on April 3, 1888. The will set forth in the opinion was admitted to probate and the surviving! husband appointed executor thereof on May 10, 1888. He filed a petition for distribution on October 17, 1891, and objections thereto were thereafter filed by the guardian of the children.

<p>Inventory—What must be Included in.—An executor must return in the inventory everything of value belonging to the estate of his testator, whether it is property owned by or a debt due the estate.</p> <p>Inventory.—The Goodwill of a Business is Property, so is a Trademark; and where the decedent was a member of a partnership, the goodwill of the business and a trademark owned by it should be embraced in the schedule of assets in the inventory, unless there is a clear provision in the articles of partnership excluding the estate of a deceased partner from a share in the value thereof.</p> <p>Contracts.—Particular Clauses of a Contract are Subordinate to Its General Intent, and the whole of a contract should be taken together so as to give effect to every part if reasonably practicable, each clause aiding in the interpretation of the other.</p> <p>Inventory.—Assets of a Firm Include the Goodwill of the business and trademarks owned by the firm.</p> <p>Inventory—Doubtful Assets.—Even if the Question is in Doubt and equally balanced, whether an estate is or is not to be deprived of a share of the goodwill of a business trademark, it must be included in the inventory.</p>

<p>Minor and Absent Heirs—Appointment of Attorney by the Court.— The court is authorized, in its discretion, under Code of Civil Procedure, section 1718, to appoint a competent attorney to represent minor heirs having no general guardian in the county; heirs and creditors who are nonresidents of the state, and other interested parties who are unrepresented. The exercise of this power imports no censure upon the counsel for the administrator; it is assistive and not obstructive.</p> <p>Minor and Absent Heirs—Compensation of Attorney.—There is no absolute standard by which to fix the compensation of an attorney appointed by the court to represent minor or absent heirs. A small estate may entail greater labor and relatively larger responsibility than an estate of magnitude. The size of the estate is a factor but not the prime one in the question. Bach case must therefore depend upon its own circumstances.</p>

Louis G. Starke was appointed administrator of the above-named estate on July 1, 1885. On September 10, 1886, his letters were revoked, and E. J. Le Breton was appointed administrator. The account mentioned in the opinion was filed by the former administrator on January 4, 1887, and was settled on February 15, 1887.

<p>Inventory—Time for Filing.—The statute prescribing the time within which the inventory and appraisement of an estate of a decedent must be filed is directory merely.</p> <p>Inventory—Revocation of Letters for Failure to File.—The statutory authority of a court to revoke letters testamentary or of administration, in case the executor or administrator fails to return an inventory within a prescribed time, is discretionary.</p> <p>Inventory—Time for Filing.—An executor should file an inventory at the earliest moment possible, and if other property subsequently comes to his knowledge, he should file supplemental inventories from time to time; it is, however, the application of the law to a particular state of facts that makes a case, and each case must find its justification or exculpation in these peculiar facts.</p> <p>Executor.—The Removal of an Executor Requires a Stronger Case than removal of an administrator.</p> <p>Executor—Removal for Failure to File Inventory.—A court will not remove executors for failure to file an inventory within the precise time prescribed by statute, when their dereliction arises because of the negligence of their counsel.</p>

William Hessler died on September 22, 1894, and on October 18, 1894, Catherine Hessler, Ms widow, was appointed administratrix of Ms estate. An inventory was filed on October 17, 1894, and on November 20, 1894, the widow filed the petitions mentioned in the opinion; subsequently the absent heirs filed objections to the granting of these petitions.

<p>Trust, When Created by Will.—Where a testatrix directs that there be paid monthly to her daughter a specified sum, and to her two granddaughters a like sum, share and share alike, and in case of the death of either of the granddaughters, without issue, the survivor to take the whole of the last named sum; and further provides that on the death of her daughter her estate shall go to her two grandchildren, share and share alike, or to the survivor of the daughter in case of the death of either of the granddaughters; and an executor is appointed by the will, but he is not named as trustee, a trust is created by the will which appoints an executor, but does not name him trustee.</p> <p>Trust.—It is not Necessary to Use the Word “Trust” or “Trustee,” or any particular form of words, in. creating a trust, so long as the intention of the testator is expressed.</p> <p>Trust.—A Person may Declare a Trust Either Directly or Indirectly ■—the former, by creating a trust eo nomine in the forms and terms of a trust; the latter, without affecting to create a trust in words, by evincing an intention which the court will effectuate through the medium of an implied trust.</p> <p>Trust.—An Executor may be Both Executor and Trustee. If not named expressly a trustee, the court may determine from the whole will whether he is not to act as trustee.</p> <p>Trust.—When the Income of Property is Given to One for Life, and, at his death, the property is given over to another, and no trustee is named in the will, the executor is the trustee to hold the property during the lifetime of the legatee for life.</p> <p>Trust—A Trust will not be Permitted to Fail for Want of a Trustee.—The probate court will determine whether a valid trust has been created, and may distribute the estate to a trustee, he being entitled to the possession and control of the same.</p> <p>Trust.—When a Trust is Created, a Legal Estate Sufficient for the execution of the trust will, if possible, be implied.</p> <p>Administration—Duty to Close Speedily.—It is the duty of the court and executor to close an administration speedily, and as soon as the debts and expenses of administration are paid and there are persons entitled to the possession of the estate.</p> <p>Executors.—Commissions of Executors and Administrators cannot be Apportioned until the close of administration, and an executor must close his account as executor before being charged as trustee.</p>

<p>Application for letters of guardianship..</p>

<p>Probate of Destroyed Wills.—An Olographic Will destroyed by a friend of the testator in his presence, as being of no further use after a typewritten copy thereof had been made, is not "fraudulently destroyed," within the meaning of these words in the statute prov'iding for the probate of lost or destroyed wills.</p>

<p>Application by guardian for a reduction of his bond.</p>

<p>Pleading.—Amendment to Pleadings Should he Allowed with great liberality; but an amendment is not permissible which affects a radical change in the cause of action and substitutes new issues already tendered and made by the opposite party.</p> <p>Pleading.—Amendment to a Pleading is a Correction of an error committed in the progress of a cause. It is to correct, to improve, to rectify something deficient or defective in the original, not to substitute new for old. The principle to be regarded is, that where the effect of the proposed “amendment" is to state a proposition contrary to the position assumed in the original pleading, or to the theory upon which the case has been tried or the litigation conducted, then it is not an amendment.</p>

<p>Succession—Conflict of Laws.—The law of the domicile of a deceased person governs the succession to his personal property.</p> <p>Marriage Contract—Conflict of Laws.—A marriage contract is to be construed according to the law where it is made and executed.</p> <p>Marriage Contract—Conflict of Laws.—The whole of the foreign law is adopted in a marriage contract under the lex loci contractus, except the remedy, and the actual intention is to be interpreted according to that law.</p> <p>Domicile is the Place Whence a Person Goes for Labor or Other temporary purpose and whither he returns in season of repose. It is the place where a person has his home, or his principal home, or where he has his family residence and personal place of business; that residence from which there is no present intention to remove or to which there is a general intention to return.</p> <p>Domicile.—The Acts and Conduct of a Person are more conclusive in determining his domicile than are his declarations.</p>

<p>Guardians—Jurisdictional Requisites for Appointing.—The statute prescribes two jurisdictional requisites in the appointment of guardians for minors: First, the minor must have no guardian at the time application is made; and second, he must be an inhabitant or resident of the country in which the court is held.</p> <p>Domicile.—“Inhabitant” and “Resident” are synonymous terms in law, and can, strictly speaking, be applied only to persons domiciled in,a place with the intent there to remain.</p> <p>Guardian—Appointment for Nonresident Minors.—Where minors of tender years are brought into this state for the purpose of being exhibited before the public in song and dance performances, and then taken to another state for the same purpose, the superior court, by virtue of its equity powers, has jurisdiction, although the minors are not strictly inhabitants or residents of this state, to guard their welfare by appointing a suitable person as their guardian.</p>

William P. Fuller died on May 17, 1890, leaving a widow and a number of children. He left a will in which the widow was named as executrix, and which conferred upon her a power of sale.

Gershom P. Jessup died on November 2, 1886, leaving a will dated August 28, 1867. The will was admitted to probate on November 22, 1886, and letters testamentary issued to S. 0. Putnam and Isaac Jessup, the executors therein named. The testator was never married, and his entire estate was devised to his brother Isaac and his two sisters.

On October 8, 1891, the executors of the will of the above-named decedent filed a petition for distribution and their final account. Upon the hearing of the petition and settlement of the account the executors filed a supplementary account pursuant to section 1665 of the Code of Civil Procedure. In this supplementary account the executors made a statement of the taxes assessed against the estate upon three classes of property: 1.

Franz E. Behrmann died on September 19, 1891, and on October 23, 1891, Isaac Hecht, then president of the General German Benevolent Society, was appointed executor of his last will. On March 2, 1892, the executor filed a petition for distribution wherein he requested the Court to construe the clause of the will separately set forth in the opinion of the court.

<p>Minor Heirs—Appointment of Attorney.—The court will not exercise the power conferred upon it by section 1718 of the Code of Civil Procedure to appoint an attorney to represent minor heirs, except in cases where it, is manifestly necessary; and in no ease upon the suggestion of an executor or administrator, or other person in possible adverse interest to the parties sought to be represented.</p> <p>Minor Heirs—Duty of Their Attorney.—It is the duty of an attorney appointed by the court for minor heirs to call to the- court’s attention the failure on the part of an executor to comply with any requirement of the statute, and it is not for him to construe or interpret apparently imperative clauses of the statute as merely directory-</p> <p>Minor Heirs—Duty and Compensation of Attorney.—There is a wide-difference between the attorney employed for an estate and an attorney appointed by the court to represent minor heirs, and their compensation is not to be measured alike.</p> <p>Minor Heirs—Duty and Compensation of Attorney.—The attorney for an executor is employed and is allowed compensation to manage the legal affairs of the estate, and is accountable for the proper performance of his duties as such attorney; he prepares all the papers and appears as the principal representative in the court; while an attorney appointed by the court to represent absent or minor heirs is an auxiliary of the court, and his service is in a sense subordinate. He acts as scrutinizer of the affairs of administration, a challenger and critic of the management of the estate, and is expected to advise the court from time to time as to any default or dereliction on the part of the administrator or executor.</p> <p>Minor Heirs — Compensation of Attorney.— The compensation awarded an attorney appointed by the court to represent minor heirs should be charged against the persons whom he represents' and not against the body of the estate, even though the executrix assents to the charge; and such compensation should be in proportion to the interest represented, although the estate as a whole may incidentally benefit by the service.</p> <p>Attorney Fees.—Opinions of Attorneys as to the Reasonableness of demands for compensation for legal services afford no real assistance to the court’s judgment.</p>

On September 21, 1892, H. H. Luesmann, the husband of Anna E. Luesmann, filed a petition for letters of administration upon her estate, wherein he averred that she died in San Francisco on or about June 24, 1890.

<p>Wills—Taking Per Capita or by Representation.—Where a testator bequeathes one-half of the residue of his estate to the "heirs” of a deceased sister who left a surviving son and six children of a deceased daughter, these heirs take by right of representation and not per capita; that is, one-fourth of the residue goes to the son and one-twenty-fourth to each of the six children.</p> <p>Wills—Lapse of Legacy on the Death of Legatee.—Where a testator bequeathes one-half of the residue of' his estate to a sister, and she dies before his death leaving a daughter and three sons, and these sons also died before the testator, one of them leaving a widow and two sons and the other a widow, the bequest does not lapse, but goes to the lineal descendants of the sister. However, the widows of the deceased sons, not being lineal descendants, are not entitled to share in the bequest.</p>

Anna J. Skerrett died in London, England, and at the time of her death was a resident thereof. She left a will executed in London. By this will she devised and bequeathed all her estate “to the Very Reverend, the Roman Catholic Archbishop of Westminster, for the time being, to be distributed by him at his discretion among such poor people as he may select,” subject to two legacies of 100£ each, and an annuity of 18£ and 4s. to a servant of the testatrix.