Volume 3 — Coffey's California Probate Decisions (1880–1915)

<p>Contest to probate of will; demurrer to contest.</p>

This was a contest of a will after probate, instituted by two of the testator’s six children by his first marriage. The will disposed of all the estate to his second wife and the five children of the second marriage. The contest was based upon every statutory ground against the validity of a propounded will, viz.: 1. The alleged will was never signed by testator; 2. Testator never declared it to any witness; 3.

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

Alexander Blanc died on June 14, 1891, leaving a widow, a sister, the children of a deceased brother and the children of a deceased sister. On June 22, 1891, the widow filed a petition for probate of the will of decedent, which was dated June 12, 1891. The will was admitted to probate on July 6, 1891. In this will the widow and one of the nephews were named as the principal legatees and devisees.

Clara Cecilia Bedell died on October 16, 1891, leaving a will dated June 20, 1891, in which Richard Y. Dey was named as executor. On November 3, 1891, Edward W. Gunther filed a petition for letters of administration with the will annexed, alleging that Dey had renounced his right to act as executor, and that the mother of the decedent requested his, Gunther’s, appointment as administrator. Annexed to the petition was the request of the mother.

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

Theresa Fair died on September 13, 1891. The will, set forth in the opinion below, was admitted to probate on October 5, 1891. On May 11, 1892, Charles L. Fair filed a petition wherein he alleged that his brother, James G. Fair, Jr., had died on February 12, 1892, under the age of thirty years, and without wife or lawful issue surviving him.

<p>Will—Right to Withdraw from Files.—Where a will has been filed for probate but the evidence adduced is insufficient to prove its execution, the court has no authority to order the withdrawal of the will from the files and direct a commission to be issued to take the testimony of the subscribing witnesses in a foreign land, the will to accompany the commission and be returned with it to the court.</p>

On July 15, 1887, letters of guardianship of the persons and estates of John H. Murphy, Mary A. Murphy, James F. Murphy, Albert E. Murphy and George Murphy, minor children of Patrick S. Murphy, deceased, and Margaret A. Murphy, were issued to their mother by the superior court of the city and county of San Francisco. At the time of the issuance of the letters the minors resided with their mother in said city and county.

On December 8, 1882, Nathaniel Hunter, secretary of the California Society for the Prevention of Cruelty to Children, was appointed guardian of Frank B. Taylor, a minor, whose father was dead at the time and whose mother had been guilty of cruelty and neglect toward him.

<p>Accounts of Executor—Delay in Kendering.—When an executor fails to render an account and delays closing the administration for a number of years, he cannot, when he at last files an account in obedience to a citation, urge that objections to the account come too late.</p> <p>Accounts of Executor—Delay in Contesting.—An heir or legatee who contests an executor’s account when it comes up for settlement is not chargeable with laches in not having exercised his right to compel the executor to file his account sooner than he did.</p> <p>Accounts of Executor—Estoppel Against Executor.—Where an Executor shortly after his appointment files an account wherein he charges himself with certain money and property received as executor, and ten years after, in obedience to a citation, files a second account not charging himself with such money and property, but claiming that they belonged to a partnership composed of himself and the testator, his claim comes too late.</p> <p>Executor—When Chargeable with Interest on Money Used as His Own.—Where an executor uses money of the estate as his own, he is chargeable with interest thereon; in this case, however, it appearing that the executor did not use the money with any intent to defraud the estate thereof, it is held that justice will be subserved by charging him with simple interest only.</p>

On June 1, 1892, a demurrer to the opposition to the probate of the will of the above-namted decedent, dated December 12, 1876, was sustained, with leave t'o amend, and on July 7, 1892, an amended opposition was filed by the contestants. Thereafter the executor filed a demurrer to the amended opposition.

<p>Claims Against Estate—Whether Draw Interest.—All interest-bearing obligations continue to bear interest after the obligor’s death; even those that were not originally interest bearing become so after presentation and allowance.</p> <p>Claims Against Estate—Computation of Interest.—To ascertain the amount of a claim against a decedent’s estate at any particular time, there should be added to its face the accrued interest to that date, limiting the rate to seven per cent when the estate is insolvent.</p> <p>Claims Against Estate.—The Preference Given to Judgments rendered against a decedent in his lifetime includes the interest due thereon at the time of payment.</p>

<p>Revocation of Probate—Appeal and Undertaking Thereon.—A decree revoking the probate of a will and awarding costs to the contestants is not “a judgment or order directing the payment of money,” and on appeal therefrom no undertaking in double the amount of the costs is required to stay execution of the judgment.</p> <p>Undertaking on Appeal.—An Undertaking in Double the Amount of Costs, taxed in a case where no undertaking is required to stay execution, is without validity either as a statutory or common-law bond, and cannot be enforced against the sureties.</p>

<p>Evidence—Weight and Credibility.—The court is not bound to decide in conformity with the declarations of any number of witnesses against a less number or a presumption of other evidence satisfying the judicial mind.</p> <p>Marriage—Sufficient Marriage Contract.—The following contract signed by the parties, but not witnessed, is not legal in form: “San Francisco, Cal., January 6th, 1895. We, the undersigned, Charles A. James, aged 60, and Laura Milen, aged 19, do hereby mutually bind ourselves unto each other as husband and wife. This agreement or contract to be authority for same before God and man.”</p> <p>Marriage—Assumption of Marital Eights and Duties.—In this case where a woman claimed to be the widow of the decedent by virtue of a contract entered into with him followed by an assumption of the marriage relation, the court holds, after an extended review of the evidence, that there was no mutual assumption of rights, duties or obligations marital, and that they never lived together as husband and wife.</p> <p>Parent and Child—Evidence of Paternity.—In this case, where it is contended that a woman is the widow of the decedent by virtue of a contract marriage followed by an assumption of conjugal relations, and that a child was born of the union, the court holds that there was not an assumption of the relation of husband and wife, and that the child is not the offspring of the decedent.</p> <p>Forged Marriage Contract—Expert and Other Evidence.—An alleged contract of marriage produced in this ease is, in the light of expert and other evidence, held a forgery.</p>

<p>Executors—Computation of Commissions.—Under section 1618 of the Code of Civil Procedure, when part of the estate over $20,000 comes under the provision as to labor involved, commissions should be computed on it at the one-half rate, and on the balance at full rates. For the property not distributed in kind, and for property involving more “labor than the custody and distribution of the same,” full commissions are allowed; for that distributed in kind, and involving no labor beyond its custody and distribution, half commissions on the excess over $20,000 is ample compensation.</p> <p>Executors—Commissions When No Labor Beyond “Custody and Distribution.”—Property consisting of money deposited in bank or of unimproved land “involves no labor beyond the custody and distribution of the same”; there must be active management and attention to constitute “more than mere custody and distribution.”</p>

<p>Family Allowance.—It Seems that Minor Grandchildren, as well as minor children, may constitute the “family” for whom an allowance may be made from the estate of the deceased ancestor.</p> <p>Family Allowance—Conclusiveness of Order.—An order for a family allowance, though erroneous, becomes conclusive if not appealed from.</p> <p>Executors—Payment of Stock Assessments.—The. payment by an executor of assessments on speculative shares of stock purchased by his testator is not encouraged by courts, and usually is at his hazard, and justified only by a successful issue of the investment.</p>

<p>Application for removal of administrator on grounds of negligence, fraud and conspiracy.</p> <p>Tobin & Tobin and George A. Clough, for the applicant, Hibernia Savings and Loan Society.</p>

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

<p>Homestead.—A Widow is Entitled to have a homestead set apart from the estate of her deceased husband, even if the entire estate is thereby consumed, irrespective of the claims of creditors, and notwithstanding there are no minor children.</p> <p>Homestead—Eight of Widow as Against Devisees.—The right of a widow to have a homestead set apart to her is superior to any attempt at testamentary disposition. Heirs and devisees occupy no better position as against her right than do creditors.</p> <p>Homestead—Value of Property Set Apart.—Where the only premises of a decedent suitable for a homestead are indivisible, they may be set apart to the widow although appraised at $30,000.</p>

Application to set apart an estate under $1500 to the widow and children of the decedent, under section 1460 of the Code of Civil Procedure.

<p>Testamentary Capacity.—The Test of Capacity to Make a Will is this: The testatrix must have strength and clearness of mind and memory sufficient to know in general, without prompting, the nature and extent of the property of which she is about to dispose, the nature of the act which she is about to perform, the names and identity of the persons who are the proper objects of her bounty, and her relation toward them.</p> <p>Testamentary Capacity.—In Order to have a Sound and Disposing Mind the testatrix must be able to understand the nature of the act she is performing, she must be able to recall those who are the natural objects of her bounty, she must be able to remember the character and extent of her property, she must be able to understand the manner in which she wishes to distribute it, and she must understand the persons to whom she wishes to distribute it. It is not sufficient that she have a mind sufficient to comprehend one of these elements; her mind must be sufficiently clear and strong to perceive the relation of the various elements to one another, and she must have at least a general comprehension of the whole.</p> <p>Will.—The Right to Leave Property by Will is a right given by the law alone; that is, a person has no natural right to leave his property in any particular way.</p> <p>Wills—Injustice or Unreasonableness of Disposition.—The competency of the testatrix being shown, the wisdom or folly, justness or unjustness of the will, can play no part in the question of its validity; but the character of the provisions of the will, as being just or unjust, reasonable or unreasonable, may be considered by the jury as tending to throw light on the capacity of the testatrix.</p> <p>Testamentary Capacity—Terms of Will and Condition of Estate.— In determining the soundness of mind of a testatrix, the jury should take into consideration the provisions of the will itself, and also the condition and nature of the estate disposed of.</p> <p>Testamentary Capacity—Condition and Relation of Beneficiaries.— In determining the soundness of mind of a testatrix, the jury should consider the condition of the beneficiaries under the will, the relations between the testatrix and any contestants or excluded relatives, and also their age, condition, circumstances, and- their conduct toward the testatrix.</p> <p>A Witness False in One Part of His Testimony is to be distrusted in other parts.</p> <p>Jurors are the Sole Judges of the Effect and Value of the Evidence addressed to them; their power is not arbitrary, however, but is- to be exercised with legal discretion and in subordination to the rules of evidence.</p> <p>Testamentary Capacity—Opinion of Acquaintance.—Where the opinion of an intimate acquaintance is given respecting the mental capacity of a testatrix, it is proper for the jurors to consider the degree of intimacy of the acquaintanceship in determining how much weight should be given to the opinion, and they must determine the weight to be given the opinion of each witness from the facts and circumstances upon which he founded his opinion, keeping in view the degree of intimacy existing in each case.</p> <p>Wills—Unreasonable Previsions — Unfounded Discrimination.—A person has the right by will to bestow her property on whomsoever she pleases; and if there is no testamentary incapacity, the law must give effect to her will, even though the provisions may appear unreasonable, or however great or unfounded may be her likes or dislikes or resentment against those who may be thought to have some claim against her bounty.</p> <p>Wills—Injustice or Impropriety of Provisions.—The beneficiaries named in a will are as much entitled to protection as any other property owners, and juries should not set aside a will through prejudice or merely on suspicion, or because it does not conform to their ideas as to what is just or proper.</p> <p>Testamentary Capacity—Discrimination Against Heirs.—It cannot be presumed that a testatrix was of unsound mind because she discriminated against her heirs in the disposition of her estate.</p> <p>Wills—Right to Dispose of Property.—A person of sound mind may leave his property by will to relatives, or dispose of it otherwise as he pleases. His own wishes and judgment in this regard are sole and supreme.</p> <p>Wills.—Mere Hatred or Dislike of Relatives which influences a testatrix in making her will, without proof of actual mental unsoundness, will not invalidate the will.</p> <p>Testamentary Capacity.—The Law Presumes that Every Person possesses a sound and disposing mind, and his devisees and legatees are entitled to this presumption as a matter of evidence.</p> <p>Testamentary Capacity—Burden of Proof in Will Contest.—Those who contest a will on the ground that the testatrix was of unsound mind have the burden of proof to establish such unsoundness by a preponderance of evidence. If the evidence is equally balanced, the contestants fail to sustain the burden which the law imposes upon them.</p> <p>Testamentary Capacity—Burden of Proof and Preponderance of Evidence.—Persons who assert the insanity of a testatrix are required to prove their assertions by a preponderance of evidence, by which is meant that amount of evidence which produces conviction in an unprejudiced mind.</p> <p>Testamentary Capacity.—The Presumption that Every Person is of Sound Mind until the contrary is proved is a legal presumption.</p> <p>Testamentary Capacity—Perfect Mental Health.—The law does not require that a person, to be competent to make a will, should be in perfect mental health.</p> <p>Testamentary Capacity—Time When must Exist.—When a will is contested on the ground that the testatrix was of unsound mind, the time when the will was executed is the time to which the jury must look in determining the question of testamentary capacity. What her mental condition was before or after the execution of the will is important only so far as it throws light upon her mental condition when the will was executed.</p> <p>Testamentary Capacity.—The Will Itself may be Considered in determining whether the author was of sound and disposing mind.</p> <p>Testamentary Capacity—Bodily Health and Strength.—In determining testamentary capacity it is the soundness of mind, not the state of bodily health, that is considered. The bodily health of a testatrix is important only so far as it may be evidence of the state of her mind. Neither sickness nor physical disability alone will disqualify a person from making a will.</p> <p>Suicide is Never Presumed by the Law from the mere fact of death.</p> <p>Testamentary •Capacity.—The Fact that a Testatrix Committed Suicide raises no presumption that she was of unsound mind at that time.</p> <p>Wills.—A Niece is Under No Obligation to Provide for Her Uncles and aunts, either when living or by will, and the failure to name them in her will raises no presumption that they were forgotten.</p> <p>Will Contest—Relative Wealth or Poverty of Parties.—If a testatrix was of sound and disposing mind when she made her will, the jury cannot consider, in ease of a contest of the will, the relative wealth or poverty of the parties to the controversy.</p> <p>The Opinion of a Witness Founded upon a Hypothetical Question must be brought to the test of facts in order that the jury may judge what weight the opinion is entitled to.</p> <p>Will Contest.—For the Jury to Cro Outside the Evidence and base its decision in a will contest upon anything but a consideration of the evidence is to disregard the law and their oaths.</p> <p>Will Contest—Province of Court and Jury.—In a will contest the jurors are to find the facts, but they must take the law from the court.</p> <p>Wills—Unjust Provisions.—A Person of Sound Mind has a Right to make an unjust or even a cruel will, if he chooses, and no court or jury may deprive him of that privilege.</p> <p>Witnesses—Impeaching Evidence.—A Witness Called by One Party may be impeached by the other party by proof that he has made at other times statements inconsistent with his present testimony; but such evidence is to be considered by the jury only as affecting the credibility of the witness.</p>

<p>Insanity of Testator—Burden of Proof.—In the contest of a will on the ground of the insanity of the testatrix, the burden is upon the contestant to establish his contention affirmatively by a preponderance of evidence.</p> <p>Insanity of Testator.—It is Presumed that a Person is Sane, and proof of insanity at one time carries no presumption of its past existence.</p> <p>Will Contest—Lav/ of the Case.—The decision by the supreme court rendered upon an appeal taken by a brother of the present contestant from a judgment against him in a contest of the will before probate, establishes the law governing this contest after .probate, so far as the facts in evidence are substantially the same as those involved on such appeal.</p> <p>Insanity of Testator—Opinion of Acquaintance.—Section 1870 of the Code of Civil Procedure permits as evidence the opinion of an intimate acquaintance respecting the mental sanity of a person, but with that opinion must be given the reasons upon which it is based, and the opinion itself can have no weight other than that which the reasons bring to its support.</p> <p>Wills—Whether Unnatural or Unjust.—The evidence in this case shows that the testatrix did not intend to provide for her next of kin as her estate had been derived from her father, between whom and her contesting kin there seemed to have been nothing in common, and the testatrix had never known or cared for the omitted relatives, and in the drawing of the will she had before her a copy of her father’s will, which, as to many of the bequests, she followed with a fidelity indicating a respect for what she must have conceived would have been his wishes; and the will itself contains nothing irrational or unnatural or opposed to ordinary notions of equity, but, on the contrary, is in accord with the sentiments of affection resulting from the intimacy subsisting between the testatrix and her beneficiary, who had been her companion and confidant from girlhood. Under such circumstances it cannot be contended that the will is at variance with natural instincts or justice.</p> <p>Testamentary Capacity—When Established.—A review of the evidence as to the habits, characteristics, conduct, manner and testamentary capacity of the decedent, establishes that at the date of the execution of the will the decedent was in full possession of her faculties, and competent to execute a will.</p> <p>Undue Influence—Presumption and Burden of Proof.—Undue influence cannot be presumed, but must be proved in each case, and the burden of proof lies on the party alleging it.</p> <p>Undue Influence—When "Vitiates Will.—The kind of undue influence that would destroy a will must be such as in effect destroys the free agency of the testatrix and overpowers her volition at the time of the execution of the instrument, and evidence must be produced that pressure was brought to bear directly upon her testamentary act.</p> <p>Undue Influence—What does not Amount to.—Surmises and suspicions arising from opportunity and propinquity may be indulged in to an illimitable extent, but these do not constitute proof and must be disregarded by the court. The evidence in this case shows that the testatrix, at the time of executing her will, was unconstrained by undue influence, and is entirely in favor of the respondents.</p>

Application by Gaston E. Bacon for the probate of a will and for the letters testamentary thereon as executor according to the tenor of the will; and application by the public administrator for letters of administration with the will annexed.

<p>Will—Whether Creates Charity or Personal Bequest.—A clause in a will “the residue (if any) I leave to my executor M., to dispose in charities as he think best,” creates a personal bequest.</p> <p>Wills.—Where Absolute Discretion to Dispose of Property is left with a residuary legatee, this is equivalent to a personal legacy.</p> <p>Trust.—Three Conditions must Concur in order that a power be deemed a trust or that the specified beneficiaries take trust interests by implication in default of appointment: Imperativeness of request that donee execute the power; certainty of subject matter; and certainty of object.</p> <p>Trust.—No Recommendatory Terms of a Will expressing a will, desire or the like are sufficient to create a trust, unless there is certainty as to the parties to take and what they are to take.</p> <p>Charities.—A Degree of Vagueness is allowable in charitable bequests.</p>

<p>Community Property.—The Declarations of a Person Since Deceased are admissible to show that his estate is community property.</p> <p>Community Property—Intermingling of Funds.—Separate property intermingled with community property so that its identity is lost becomes itself a part of the community estate.</p> <p>Trust—When Expires—Parol Evidence.—The trust in this ease expired twenty-five years after the execution of the will, which bears date May 25, 1859. This being the plain language of the will, it cannot be changed by parol evidence.</p> <p>Trust—When Void as Creating Perpetuity.—The trust which the testator attempted to create in this ease is void as offending the rule against perpetuity.</p> <p>Will—When Void for Uncertainty.—If the intent of a testator in reference to a particular gift cannot be ’deduced from the face of the will, the gift fails and there is a partial intestacy as to the subject matter thereof.</p>

<p>Application for probate of a burned and destroyed will under section 1339, Code of Civil Procedure.</p>

<p>Charitable Corporation—Gift to Within Thirty Days of Death.— The Kings Daughters Home for Incurables, a corporation without capital stock, organized to maintain a home for persons afflicted with incurable diseases, is a charitable or benevolent corporation, although it receives pay patients in carrying out the objects of its formation but not for the profit of its members; and a bequest to it is governed by the restrictions imposed by section 1313 of the Civil Code.</p> <p>Charity—Bequest to Within Thirty Days of Death—Bevocation of Prior Bequest.—Where a testatrix executes a codicil in which she expressly revokes a bequest in her will of $50,000 to the Kings Daughters Home for Incurables, and in place thereof gives $25,000 to the Kings Daughters Home for Incurables, and $25,000 to the Society for the Prevention of Cruelty to Animals, the codicil, notwithstanding it otherwise fails because the testatrix dies within thirty days after its execution, revokes the gift in the will.</p>

<p>Foreign Will.—The Public Administrator is not Entitled to letters of administration with the will annexed, as against a resident devisee in a foreign will who files an authenticated copy thereof and of its probate in a foreign jurisdiction, with a petition for letters.</p> <p>Foreign Will—Construction of Code.—Sections 1322-1324 of the Code of Civil Procedure, dealing as they do exclusively with the subject of' foreign wills, furnish the exclusive rule as to their subject matter.</p>

<p>Claims Against Decedent—Whether must be Presented for Allowance.—Only such claims as were incurred by the decedent in his lifetime, or for which he might be held liable, need be presented to the administrator for allowance.</p> <p>Funeral Expenses—Whether Claim for must be Presented.—The claim of an undertaker for funeral expenses need not be presented for allowance against the estate of the decedent.</p> <p>Funeral Expenses—Time for Payment.—The funeral expenses of a decedent must be paid by the administrator as soon as he has sufficient funds in his hands.</p> <p>Claims Against Estate—Payment by Foreign Administrator.— Where an undertaker takes charge of the funeral of a decedent at the request of a person subsequently appointed administrator, and thereafter presents his claim to the administrator, who transmits it to an administrator in a sister state and receives from him the money to pay the claim, the court will order the administrator to make the payment.</p>

George Grisel died intestate on August 5, 1893, and on August 28, 1893, letters of administration upon his estate were issued to Louis Grisel, his widow. The inventory and appraisement was filed on October 17, 1893. In the inventory three parcels of land were separately described and appraised.

<p>Inventory—Money Claimed Adversely by Administratrix.—The fact that an administratrix herself makes an adverse claim to moneys deposited in her name and in the" name of her decedent, and payable to either, does not lessen her duty to include such deposits in her inventory.</p>

Henry Welch died on January 14, 1888. Letters of administration upon his estate were issued to John Purcell on January 31, 1888. On August 17, 1888, Honor Welch, widow of the decedent, filed her petition wherein she prayed for an allowance of $200 per month for her maintenance during the progress of the settlement of the estate. On August 28, 1888, the court made an order allowing the widow $125 per month from the date of her husband’s death.

<p>Grandparent—Promise to Support Grandchild.—The law imposes no duty on a grandfather to provide for his grandchild, and his promise to do so is without consideration, and cannot be enforced against his estate.</p> <p>Family Allowance.—A Grandchild whose mother is living is not entitled to an allowance from the estate of Ms deceased grandfather.</p>

<p>Guardian—Applications for Letters in Different Counties.—Where applications for letters of guardianship are made by different persons in several counties, each applicant claiming his county to be the residence of the minors, and the second application is filed before notice is given, of the first, and is first heard and determined, the order granting the same and determining that the minors are residents of the county of the second applicant is res judicata and a bar to the application first filed.</p> <p>Bes Judicata.—In Considering the Question of Bes Judicata, it is immaterial which proceeding was first instituted, if it has not reached a final determination. The case in which the first judgment is rendered is the prior one and controls, although rendered in the later proceeding.</p> <p>Guardian—Application for Letters in Different Counties.—Where an application for letters of guardianship is granted by the superior court of one county, and an application is thereafter made to vacate the order on the ground that the minors are not residents of that county, which application is denied, the order denying it is conclusive upon an application for letters in the superior court of another county, although that application was first filed.</p> <p>Courts—Conflict of Jurisdiction.—As between courts of concurrent jurisdiction, that court in which process is first served has the prior jurisdiction, irrespective of which proceeding is first instituted.</p> <p>Judgments.—The Doctrine of the Conclusiveness of Judgments against collateral attack applies to judgments of the superior court in probate and guardianship as well as to those in any other branch of its jurisdiction.</p> <p>Guardian.—The Residence Necessary to Confer Jurisdiction in matters of guardianship is the actual residence or abode of the ward, not his legal residence or domicile.</p> <p>Guardian.—Residence is not Required, under section 1747 of the Code of Civil Procedure, in order to confer jurisdiction in guardianship proceedings, but mere inhabitance is sufficient.</p> <p>Inhabitancy—Residence.—The Distinction Between an Inhabitant and a Resident is that the place one inhabits is his dwelling place for the time being, while the place where one resides is his established abode for a considerable time.</p> <p>Guardian.—A Minor Over the Age of Fourteen Years has an exclusive right to petition for the appointment of his guardian until he has been cited and has neglected for ten days to nominate a suitable person as his guardian.</p>

<p>Marriage—White and Colored Persons.—A marriage between a white man and a colored woman is forbidden by the law of California, but if such a marriage is contracted in a state where it is valid, it will be recognized in this state.</p> <p>Family Allowance—Validity of Marriage.—-Where a colored woman claims to be the wife of a decedent by virtue of a marriage contracted in another state, she must, on her application for a family allowance, establish the marriage by a preponderance of proof, and no presumption will be indulged in her favor.</p> <p>Family Allowance—Disputed Marriage.—-Upon an application for a family allowance by a woman whose marriage to the decedent is disputed, her marriage must be established by the same quality of proof as in any other case.</p> <p>Contract Marriage.—An Agreement to be “Husband and Wife” is</p> <p>distinguished from an agreement to live together as “man and wife.” The latter agreement does not constitute a contract of marriage, and living together as “man and wife” does not constitute marriage.</p> <p>Contract Marriage.—In Considering the Claim of a Contract Marriage, the circumstance that the alleged widow, a few days after her alleged husband’s death, stated to the executors of his will that she was with child by him, and did not then or until sometime afterward assert her claim to widowhood, is to be taken as strongly negativing such claim.</p> <p>Contract Marriage—Evidence.—The Acts of a Testator in making a bequest to a woman under a surname other than his own and describing her as his housekeeper, and in acknowledging a deed before an officer as an unmarried man, are evidence as to the truth of the facts so stated.</p> <p>Void Marriage—Legitimacy of Issue.—Where the claim is made that a marriage was contracted in another state, which, if there contracted in fact, is valid under the laws of that state, and hence valid in this state, although such marriage would have been void if contracted in this state, the provision in section 1387 of the Civil Code that the issue of all marriages null in law are legitimate has no application.</p> <p>Family Allowance—Void Marriage.—The court in this case finds: That the petitioner is not the widow and her child is not the child, either legitimate, adopted or illegitimate, of the decedent, and that the application for a family allowance should he denied.</p>

Patrick Clancy died on October 28, 1885, and the will set forth in the opinion below was admitted to probate on November 30, 1885. On March 27, 1894, Mary T., John J. and Edward Feeney filed a petition for distribution to them of the share of the above-named estate conditionally devised to Bridget Feeney, their mother. The latter died on October 20, 1889. Thomas Clancy, the son of the testator, died on May 15, 1890, and before the youngest child of the testator became of age.

<p>Gunnison, Booth & Bartnett, for the petitioning executor.</p>

<p>Testamentary Capacity.—Upon a Consideration of the Evidence, and of the fact that the proponents of the will in this ease failed to produce evidence which was within their power if their contentions were true, it was held that the testator was of unsound mind at the time of the execution of his will.</p> <p>Undue Influence.—Upon an Examination of the Evidence the court found in this case that the will proposed for probate was procured by duress and undue influence.</p> <p>Wills—Bequest to Witness to Sign.—The request to a witness to sign his name to a will should come from the testator and not from a third person.</p>

Michael Leahy died intestate on July 12, 1892, leaving him surviving Ellen, his widow, and Alice, their minor child, and also a number of adult children by a former wife. The widow was appointed administratrix of the estate on August 1, 1892, and on August 26, 1892, filed her petition to have set apart to her as a homestead, absolutely, a lot on Bartlett street, in San Francisco, which she claimed was community property.

<p>Inheritance Tax.—Property Passing by will or by the intestate laws is subject to the inheritance tax on its market value, and this tax, it would seem, should be assessed on the estate of a decedent after the deduction of costs of administration and debts.</p>

The will mentioned in the opinion below was admitted to probate, and Timothy L. Barker and Joseph D. G-rant were appointed executors thereof, and letters testamentary were issued to them, on November 14, 1893. On November 5, 1894, the Market Street Railway Company (claiming as the successor of the Omnibus Cable Company) filed a petition for distribution to it of the bequest contained in the eighteenth clause of the will, which clause is fully-set out in the opinion.

<p>Ademption.—Ademption is the Revocation of a Grant, Donation, or the like, especially the lapse of a legacy, by the testator’s satisfying it by delivery or payment to the legatee before his death, or by his otherwise dealing with the thing bequeathed so as to manifest an intent to revoke the bequest.</p> <p>Ademption.—To Adeem is to Revoke a Legacy either by implication, as by a different disposition of the bequest during the life of the testator, or by satisfaction of the legacy in advance, as by delivery of the thing bequeathed, or its equivalent, to the legatee during the lifetime of the legator. A specific legacy may be adeemed; if the subject of ,it is not in existence at the time of the testator’s death, then the bequest entirely fails.</p> <p>Ademption.—The Question of Ademption is Purely One of Fact and not of intention, differing in this respect from revocation, which is purely one of intent.</p> <p>Ademption.—Ademption is the Extinction or Withholding of a Legacy in consequence of some act of the testator, which, though not directly a revocation of the bequest, is considered in law as equivalent thereto or indicative of an intention to revoke. The ademption of a specific legacy is effected by the extinction of the thing or fund, without regard to the testator’s intention; but where the fund remains the same in substance, with some unimportant alteration, there is no ademption.</p> <p>Ademption.—The Very Thing Bequeathed must be in Existence at the death of the testator and form part of his estate, otherwise the legacy is wholly inoperative.</p> <p>Ademption—Change Worked by Organization of Corporation.—Where the owner of land devises the same, together with the buildings and business thereon conducted, and thereafter organizes a corporation and leases the property to it, he being the principal stockholder in the corporation and continuing to manage the business as before, there is no change in the substance of the property, and on his death the devisees and legatees named in his will are entitled to a distribution of the property as therein specified.</p>

<p>Application for final distribution.</p> <p>F. S. Brittain, for Mrs. Elizabeth I. Granniss, widow.</p>

<p>Will.—In the Interpretation of a Will No Becourse to Technical Buies is necessary or permissible, if the intention of the testator clearly appears from the provisions of the instrument.</p> <p>Will—Life Estate—Power of Disposition.—Where a' will gives an estate for life to the widow, with remainder over, a power of disposition given her by another clause in the will does not enlarge her estate into a fee and destroy the rights of the remaindermen.</p>

<p>Application of Kate Donovan for an order on executors to show cause why they have not paid amount distributed to her.</p>

<p>Inheritance—Waiver of Eight by Wife in Divorce Proceeding.— The stipulation in this case, signed by a wife in her divorce proceeding, is held not to constitute a waiver of her right to inheritance in her husband’s estate.</p>

<p>Application for partial distribution by Margaretha Thornagel.</p>

<p>Applications for letters of administration—the first by Andrew J. Piercy, son; and the second by the Central Trust Company, nominee of eldest son and daughter.</p>

<p>Application for partial distribution by Mary A. Henarie, the widow of the decedent.</p>

Joseph Ross died October 27, 1898, leaving a will which was admitted to probate. The provision of the will involved in the present decision will be found in the first paragraph of the opinion of the court.

<p>Olographic Will—Revocation of Probate.—The Application in this Case for the revocation of the probate of an olographic will, on the ground that the second date line which was essential to complete the instrument was not in the handwriting of the testator, was denied.</p>

William Benton died on July 18, 1891, at the town of Port Blakely, county of Kitsap, state of Washington, of which place he was a resident at the time of his death. ' He left a will dated December 12, 1876, and executed in the state of Washington according to the laws of that state, and in conformity with the laws of this state.

<p>Mary Tobin died on October 1, 1893, leaving a will dated July 21, 1891. James IT. Kehoe was named as executor, and filed a petition for the probate of the will on October 4, 1893.</p> <p>Thereafter a contest was filed by Catherine Kehoe, a sister of the testatrix, and others. The contest resulted in the will being sustained, and the same was admitted to probate and letters testamentary issued thereon to the applicant. Subsequently contestants moved for a new trial.</p>

Dominick E. Griffiths died intestate in the Republic of Mexico on May 27, 1895. At the time of his death he was a resident of San Francisco, California, and left estate therein. He left him surviving as his heirs his brothers, Joseph, Thomas M. and Edgar V. Griffiths.