Volume 4 — Coffey's California Probate Decisions (1880–1915)

On. March 5, 1895, Dominga Barbagelata filed a petition for partial distribution. On March 20,1895, she filed an amended petition; and on April 16, 1895, the executors filed their answer thereto. The other facts are stated in the opinion.

<p>Letters of Administration.—If the Executor Named in a Will is incompetent, or renounces, or fails to apply for letters, then letters of administration with the will annexed must be issued as provided in section 1365 of the Code of Civil Procedure.</p> <p>Executors—Renunciation of Right to Letters by Nominating Administrator.—Where the executors named in a will request the appointment of another person as administrator, who is appointed and dies during administration, and the executors thereupon apply for letters, such application is based upon the circumstances then existing, and their previous failure to apply for letters does not affect their right to appointment under such altered circumstances.</p> <p>Executors—Right to Letters After Death of Administrator with Will Annexed.—Where petitioners for letters are next of kin of the testator, and would be entitled if he had died intestate to share in the distribution of his estate, they are entitled to administer thereon in preference to the public administrator, without the testator’s nomination of them as his executors; and their request for the appointment of another as administrator, who is appointed accordingly and dies during administration, does not deprive them of their right to letters after the death of such administrator.</p> <p>Executors.—Where Executors Fail to Apply for Letters Testamentary, the court is authorized to appoint an administrator with the will annexed, without any request or renunciation by the executors. It does not follow, therefore, when the executors make a request, that the court, by appointing an administrator with the will annexed, treated such request as an absolute renunciation.</p> <p>Executors—Renunciation by Nominating Administrator.—Two heirs and legatees of the decedent, who were also named in his will as executors, requested the appointment of a person designated by them as administrator with the will annexed; and, with the expressed intention that such person and no other should be appointed administrator, declined to act as executors. Their nominee was accordingly appointed, but thereafter died. Thereupon the executors petitioned for the issuance of letters testamentary to themselves; the public administrator petitioned for his own appointment as administrator with the will annexed, contending that the executors had renounced their right to letters. It was held that the right of the executors to appointment was affected by their original request only to the extent of preventing them from being appointed as against their nominee, and that such request did not amount to an absolute renunciation.</p>

The will of the above-named decedent was admitted to probate, and letters testamentary' issued to the California Safe Deposit and Trust Company, on October 2, 1894. A petition for distribution was filed by the executor on May 15, 1896.

<p>Application by widow for an absolute homestead.</p>

<p>Contest as to heirship under section 1664, Code of Civil Procedure.</p>

<p>Marriage—Proof by Conduct.—An isolated instance of a man introducing a woman as his wife does not necessarily establish their marriage; "the whole conduct and behavior of the parties must be considered.</p> <p>Evidence—Quality Bather than Quantity.—A court, sitting as a jury, is not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction, against a less number or against a presumption or other evidence satisfying the mind. The rules of evidence favor quality rather than quantity.</p> <p>Marriage—Its Nature and Importance.—Marriage is more than a contract; it is a status; an institution of society and its foundation; it does not come from .society, but contrariwise; it is the parent of society, and it is supremely important that its stability shall be secured; its contraction must be surrounded by safeguards and its sanctity upheld.</p> <p>Marriage—Contract or Consent.—The defendant claiming marriage by contract or consent, followed by mutual assumption of marital rights and duties under section 55 oi the Civil Code, the court remarked: Consent, is the pervading principle of the law. Marriage is derived from consent duly authenticated, independent of the conjunctio corporum; publicity is the publication of that consent; and that consent must go right up to the moment of their taking up life as husband and wife; it must coexist with the assumption of marital rights, duties, and obligations.</p> <p>Marriage—Assumption of Marital Eelation.—Section 55 of the Civil Code declares that if there is no solemnization of a marriage, there must be consent followed by the assumption of marital rights, duties, or obligations. Such assumption should be immediate, or at least, within a reasonable time; if two years intervene between the two events, the agreement to marry will be deemed abandoned.</p> <p>Marriage—Assumption of Marital Eights—Cohabitation.—There cannot be an assumption of marital rights and duties, within the meaning of section 55 of the Civil Code, without cohabitation, and cohabitation must be a living together as husband and wife. Constancy of dwelling together is the chief element of cohabitation. Therefore, for the parties to live in separate houses is totally incompatible with the notion of matrimonial cohabitation.</p> <p>Marriage—Consent or Contract—Cohabitation.—The mere fact that parties who have agreed to become husband and wife thereafter have sexual intercourse is not sufficient of itself to show a consummation of the marriage, or that they have assumed toward each other marital rights, duties, and obligations within the meaning of section 55 of the Civil Code.</p> <p>Marriage—Consent and Consummation.—Under section 55 of the Civil Code, providing that consent followed by a mutual assumption of marital rights and obligations may constitute marriage, consent and consummation should be consequent and complete.</p> <p>Marriage—Insufficiency of Evidence to Prove.—The evidence is examined in detail by the court in this case, and is found to be insufficient to establish a marriage by consent followed by an assumption of marital rights and obligations. The claimant’s contention presents; “a case without legal merit.” “She was not the wife and she is not the widow of the decedent.”</p>

<p>Evidence.—Entries of Births, Deaths and Marriages in a Family Bible are competent evidence, though such record does not contain every element in the history of each member of the family necessary to make it perfect.</p> <p>Evidence.—Experts in Determining the Authenticity of a Writing never go beyond an inspection; they do not do as other people ordinarily do—that is, determine the handwriting, not only by inspection of the document itself, but with reference to concomitant circumstances.</p> <p>Question of Heirship.—The Evidence in this Case reviewed and the court concludes that the next of kin are here present in the person of the Williams claimants, and so finds and determines.</p>

<p>Heirship.—The Evidence in this Case examined and held not to establish the claim of the Liverpool Blythes or “Blythe Company Claim.”</p>

<p>Heirship.—The Evidence in this Case is found not to establish the “Gypsy Claim.” “It is a Scotch case with a Scotch verdict: ‘Not Proven.’ ”</p>

Interpleader to have the court determine who is entitled to $1,000 due under a policy or beneficial certificate issued to William Peacock. William Peacock held a beneficial certificate issued by plaintiff, by which it agreed to pay his beneficiaries the sum of $2,000 upon his death. He nominated his wife, Matilda F. Peacock, his beneficiary.

<p>Application for special letters of administration.</p>

<p>Wills.—Precatory Words are Expressions in a will praying or requesting that a thing be done; they are words of entreaty, request, desire or recommendation as distinguished from direct and imperative words.</p> <p>Wills.—Precatory Words Addressed to a Devisee or legatee make him a trustee for the person in whose favor they are used, provided the testator has pointed out with sufficient certainty both the object and subject matter of the intended trust.</p> <p>Wills—Cutting Down Fee by Subsequent Words.—When an absolute estate has been conveyed in one clause of a will, it is not cut down or limited by subsequent words except such as indicate as clear an intention therefor as shown by the words creating the estate. Words that merely raise a doubt or suggest an inference will not affect the estate thus conveyed. This rule of construction controls the rule that an interest given in one clause of the will may be qualified or limited by a subsequent clause.</p> <p>Wills—Subsequent Precatory Words Cutting Down Fee.—Under a clause in a will providing that “all the rest and residue of my estate, real or personal, wheresoever situate, of which I may die seized or possessed, I give, devise and bequeath to my beloved wife..... It is my wish that my wife pay a monthly pension of ten dollars to my sister during the latter’s lifetime”—the wife is entitled to the entire residue of the estate, free from any limitation or trust.</p>

Jerome B. Painter died in San Francisco, on February 6, 1883, a resident thereof, and leaving estate therein. He left a will, dated March 11, 1864, and a codicil, dated March 11, 1874. Theodore P. Painter (testator’s brother) and R. B. Dallam (testator’s brother in law) were named as executors, and Caroline A. Painter (testator’s wife) as executrix.

<p>Motion to file copy for lost record.</p>

<p>Will Contest—Motion to Make More Certain.—A. motion to make the • statement of contest and opposition to the probate of a will more definite and certain by setting out the several grounds separately will be denied as not the proper procedure for taking advantage of the defective pleading.</p>

<p>Fitzgerald & Abbott and T. C. Coogan, for the heirs contestant.</p>

<p>Petition of Maria Josefa Cebrian and Maria Concepcion de Laveaga for partial distribution, and the answer and cross-, ■ petition of A. J. M. de Laveaga.</p>

<p>Case of Dolores de Rivera, claiming to be Dolores Apolonia de Laveaga, daughter of Jose Maria de Laveaga, deceased, an heir to Jose Vicente de Laveaga, deceased.</p>

<p>Application to set apart homestead to minor.</p>

<p>Oral decision upon objection to certain testimony of a witness.</p>

<p>Application for payment of legacy in advance of the period prescribed in will.</p>

<p>Will Contest—Taxation of Costs.—The opinion in this case consists of a judgment taxing costs against the proponents of the will.</p>

<p>Will contest, in which the issue presented was whether the instrument in question was entirely written, dated, and signed by the hand of Henry Martin.</p>

<p>The petitioner, in support of her application for distribution, introduced in evidence (1) the oral testimony of a witness who swore that he had known the deceased, Andrew Johnson, for about twenty-three years, and in particular, that he had worked with him in the mines at Knoxville, California, in 1866 or 1867; that as far as witness knew, there was. at that time no other person named Andrew Johnson working or living at Knoxville; that the deceased had informed witness, among other things relating to his family, that he was born at Stockholm, Sweden, and that he had a married sister living in South Africa; and that the deceased at the time of his death in 1888, was about fifty years old; (2) duly authenticated abstracts (copies) from the records of Catharina, parish of Stockholm, proving, among other things, that claimant’s parents were dead, that claimant was born at Stockholm, that her maiden name was Catharina Wilhelmina Jonsson and that she had one brother of the full blood, named Anders Theodor, born at Stockholm in 1838, and no other brother or sister; (3) the deposition of claimant, to which a number of letters were attached, which the claimant swore she had received from her mother, the letters containing frequent references to Anders, the son of the writer, and one in particular, of June 24, 1868, mentioning a letter sent by the same writer, on July 26, 1867, to her son Anders at “Knoxville, Labe county, California”; while another of those letters, of June 10, 1879, referred to the writer as “a cow with two calves”; (4) evidence showing the efforts made to find the heir or heirs of the deceased, the publicity given to the matter in Sweden and South Africa and the fact that no other person answering the name, age or description of the deceased was born at Stockholm; (5) a tintype attached to the deposition of claimant and by her stated to be a photograph of her deceased brother taken about 1870; (6) a letter attached to claimant's deposition and by her stated to have been received from her brother.</p> <p>On the hearing two witnesses were examined who had known the deceased. Both of them swore that they did not recognize his features in the tintype. The signature of the letter, exhibit “B” was compared with signatures of the deceased contained in bank-books; and of two witnesses requested to give their opinions as to the identity of the writer, one swore positively that, in his opinion, the writer of the letter was the person who had signed his name in the bank-books, and the other swore as positively that he was not.</p>

<p>The question involved in this case is the power of the court to remit assets to the domiciliary administrator.</p>

<p>Citation under sections 1459-1461 of the Code of Civil Procedure.</p>

<p>Homestead—Belief in Equity from Order Setting Apart.—Where a homestead is procured to be set apart by fraud, a court of equity has jurisdiction to grant relief against the order.</p> <p>Homestead—Collateral Attack on Order Setting Apart.—An order in probate setting apart a homestead cannot be collaterally attacked unless the court acted without jurisdiction.</p>

<p>Lapse of Legacy—Code Provisions.—The common-law doctrine of lapse or failure as applied to bequests or devises in ease the beneficiary predeceases the testator is preserved by section 1343 of the Civil Code, as the general rule, with the special exception, under section 1310, of avoidance in favor of “a child or other relation,” provided he leaves “lineal descendants” who survive the testator.</p> <p>Lapse of Legacy.—A Beneficiary Who is Dead at the making of a will is within the provision of section 1310 of the Civil Code that if a “devisee,” who is a “relation,” “dies before the testator,” the estate devised shall not lapse if the devisee leaves “lineal descendants.”</p> <p>Lapse of Legacy—Construction of Code.—Although section 1310 of the Civil Code, creating an exception to the doctrine of lapse in favor of the testator’s relation, refers to the latter as a “devisee,” the statute applies to a testator who leaves personal estate only, and includes legatees technically so designated as well as devisees.</p> <p>Lapse Of Legacy.—The Expression “Lineal Descendants” in section 1310 of the Civil Code means issue to the remotest degree, in which sense it is used in the title on succession.</p> <p>Wills—Meaning of “Descendants.”—The natural and technical meaning of “descendants” discussed with special reference to section 1334 of the Civil Code.</p> <p>Lapse of Legacy.—Where a Testator Leaves All His Estate, consisting solely of personalty, to his three sisters, who were at the time of the execution of the will deceased, their children and grandchildren may claim the estate under section 1310 of the Civil Code.</p>

The questions in this case involve the liability for taxes and the right to rents between the time of the confirmation of the executor’s sale and the delivery of the deed to the purchaser.

<p>Application to compel payment of mortgage debt out of estate.</p>

The question involved in this case was the admissibility of the conduct and declarations of the testator prior and subsequent to the execution of his will.

<p>Motion for change of place of trial.</p>