Volume 5 — Coffey's California Probate Decisions (1880–1915)

<p>Matt. I. Sullivan for the contestant, daughter of decedent and sole heir at law:</p>

<p>Application to revoke probate of will,</p>

<p>Adoption of Minor—Petition, Covenant and Order.—In this ease are set forth in full a petition for the adoption of a minor, the written consent of the institution having the child in custody, the covenants of the adopting parents and the order of the court authorizing the adoption.</p>

<p>Adoption—Petition, Consent, and Order of Court.—In this case are set forth in full the petition for the adoption of a minor, the consent of the father, the agreement by the petitioners, and the order of court.</p>

<p>Adoption—Petition, Consent, Agreement, and Order of Adoption.— In this case are set forth in full the petition for the adoption of a minor, the consent of the surviving parent, the agreement of the adopting parents, and the court’s order of adoption.</p>

Suit in equity to set aside proceedings in probate. There was a demurrer to the bill on the ground of want of equity and of lack of jurisdiction.

In this ease two instruments written on different sides of a single sheet of paper were offered for probate as the will and codicil of the decedent. The will was entirely written, dated, and signed by the hand of the decedent, with the exception of the figures “190” in the year 1904, which figures were printed. Upon the back of the same sheet of paper the codicil was written, which complied with the legal requirements regarding olographic wills.

<p>Resulting Trust—Parol to Establish.—When real estate has been conveyed by a deed reciting a consideration, parol evidence, in the absence of fraud or mistake, is not admissible in behalf of heirs of the grantor to show that a resulting trust arose in his favor.</p>

<p>Fraud and Undue Influence.—In Pleading Fraud and Undue Influence, it is not sufficient to state their nature, but the facts should be alleged; and they should be stated with certainty and expressly connected with the testamentary act.</p> <p>Fraud and Undue Influence.—Allegations of Fraud and Undue Influence should be as positive, precise, and particular as the nature of the case will allow.</p> <p>Undue Influence.-—The Mere Fact that the Beneficiary in a Will had an opportunity to procure a will in his favor, or that he had a motive for the exercise of undue influence, does not raise a presumption of its exercise.</p> <p>Undue Influence—Pleading.—The Exercise of Undue Influence must be directly pleaded as bearing upon the testamentary act.</p> <p>Undue Influence, to Invalidate a Will, must be Such as to destroy the free agency of the testator at the time and in the very act of making the testament. It must bear directly upon the testamentary act.</p> <p>Undue Influence.—An Allegation that Influence was Overpowering or that the testatrix was unable to resist, without the recital of the facts supporting such conclusion, is not sufficient.</p>

Aitken & Aitken, John R. Aitken, Frank W. Aitken. Power of court 'to set apart estate under fifteen hundred dollars to the widow and children under section 1469, Code of Civil Procedure.

<p>Distribution—Death of Heir Pending Administration.—Manner of distribution where an heir or devisee dies pending administration and his estate is unsettled at the time of distribution.</p> <p>Distribution.—Form of Decree for Partial Distribution where an heir or devisee dies pending administration.</p>

<p>Homestead—Examination of Title in Setting Apart.—The superior court, sitting in probate, has power to examine into the title to real estate, so far as to enable it to determine whether property sought to be set aside as a homestead is community or separate property.</p> <p>Husband and Wife—Validity of Separation Agreement.—Deeds for the separation of husband and wife are valid and effectual, both at law and in equity, providing their object be actual and immediate, and not a contingent or future, separation.</p> <p>Husband and Wife—Effect of Articles of Separation.—Articles of separation having been carried into effect in good faith by the husband, and they having been freely entered into, and there being nothing objectionable in them, the wife has no right, upon the husband's death, to claim in character of his widow, it being against equity and good conscience to set up such a claim.</p> <p>Homestead—When Waived by Articles of Separation.—An agreement amounting to a waiver, upon valuable consideration, of every right a wife could have in her deceased husband’s estate, is conclusive against all her pretensions, and estops her from claiming a probate homestead as well as any other property right.</p> <p>Family Allowance—Test of Widow’s Right.—The right of an applicant for a family allowance may be tested by reference to her relations with the deceased and her right as wife to call on him for maintenance during his lifetime.</p> <p>Family Allowance—Relinquishment by Widow.—When there are no children, the right of a widow to a homestead or family allowance may be treated as a personal privilege, which she can relinquish.</p> <p>Family Allowance—Right to, Purely Statutory.—The right to a family allowance is founded upon the statute alone.</p> <p>Family Allowance—Who are Members of Family.—The statute embraces those who were the immediate family of the deceased—■ those who were by law entitled, up to Ms death, to look to him for support and protection.</p> <p>Family Allowance—Waiver by Separation Agreement.—A wife having by her own act in entering into and carrying out an agreement for separation abdicated her right as a surviving spouse is in no sense a member of her deceased husband’s family, and is not in a position to invoke the bounty of the law.</p> <p>Homestead—Purpose and Construction of Statute.—The object of the law creating a homestead is of-a humane character, and should be held to apply fairly to all such cases as are within the equity and spirit of the act, but not beyond this.</p> <p>Homestead—Statutory Requisites.—Intended use, adaptation for use, and actual residence, are essentials of a statutory homestead.</p> <p>Homestead—What Property may be Set Apart.—A probate homestead cannot be set apart out of property 'that could not have been dedicated as a homestead by the parties while living.</p> <p>Homestead—Indivisible Property—Separate Estate.—Where the property out of which it was asked 'to select a homestead was a building entirely devoted to business purposes, not susceptible of partition, of the appraised value-of $25,000, and the separate property of the deceased husband, it was held that the property not being capable of division would have to be sold, and $5,000 of the proceeds set apart for the use of the widow; that the property, being separate estate, could be set apart only for a limited period, the title vesting in the heirs, subject to the order; that it does not appear what security the heirs would have for the return of the amount upon the expiration of the period limited, and that for these reasons the application should be denied.</p>

<p>Petition for allowance to the adult son of an incompetent person under guardianship.</p>

<p>Charity.—A Legacy for the Restoration of an Old Church and a town hall is a charitable use.</p> <p>Charity.—The Term “Charity” is a Broad One, and may be applied to almost anything that tends to promote the general well-being and well-doing of the human race.</p> <p>Charity—Gift Within Thirty Days of Death.—A legacy for a charitable use, contained in a will executed within thirty days of the testator’s death, is void under section 1313 of the Civil Code.</p>

<p>Application by Ellen E. Stouder, formerly widow of David Goodale, and subsequently married to John Stouder, also deceased, for a homestead. Opposed by children of Goodale.</p>

<p>Nathan M. Moran, for assignee of a legatee whose name was subscribed as a witness to an olographic will.</p>

<p>Claim Against Estate—Presentation and Adjudication.—After presentation and allowance by the administratrix, and approval by the judge, a claim in this case was, upon order, to show cause, ordered paid. The administratrix contested this order upon the ground that since the allowance of the claim judgment had been recovered against her by a third person for part of the claim. The claim not having been paid, a second application for an order for its payment was made. The administratrix contested this application and alleged that since the first order she had paid the judgment before mentioned, and she sought to set up this payment as a counterclaim. It was held that the former order covered the subject matter of the claim, was a full and final determination thereof, and a bar to the application to allow the setoff.</p>

Application by Claus A. Spreekels and Rudolph Spreekels, as trustees, for partial distribution. Demurrers by John D. Spreekels and Adolph B. Spreekels, as heirs and persons interested in the estate.

<p>The opinion in Estate of Barrett was destroyed in the great fire of 1906.</p>

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

<p>Expense of Litigation—Allowance to Executor.—The expense of necessary litigation involving the estate of a decedent is a part of the expense of administration for which the executor is entitled to allowance.</p> <p>Expense of Litigation—Reimbursement by Devisee.—If the amount of moneys bequeathed to the legatees in a will exceeds the amount left by the testatrix, a devisee of land involved in litigation should be required, before distribution to him, to reimburse the executor to the extent of his outlay in such litigation, it not appearing from the will that the testatrix intended the devisee to take the property intact at the expense of the legatees.</p>

<p>Estate of $1500—Estimating Value by Excluding Homestead.— Where a statutory homestead from community property has been set apart in probate to the widow, its value is not considered in determining whether the estate exceeds $1500. Hence, the petition of the widow to assign to her personal property valued at $500 should be granted, although the homestead is valued at over $3,000.</p> <p>Estate of $1500.—The Publication of Notice to Creditors is unnecessary where the court assigns the whole estate to the widow under section 1469 of the Code of Civil Procedure.</p>

<p>Attorney Fees—Allowance to Executor.—Section 1616 of the Code of Civil Procedure, as amended in 1905, gives no right to an attorney for an executor to fees which he did not possess before. Prior to the amendment his fee might be an allowance to the executor as part of the expenses of administration; that is still the case.</p> <p>Attorney Foes—Allowance to Executor.—Under the amendment of 1905 to sections 1616 and 1619 of the Code of Civil Procedure, attorney fees are still an allowance to an executor or administrator to be accounted for by him in'his accounts.</p> <p>Attorney Fees—Allowance Directly to Attorney for Executor.— Under section 1616 of the Code of Civil Procedure the attorney for an executor or administrator may in his own name petition for an allowance of fees; but attorney fees that cannot properly be allowed the executor or administrator in his accounts cannot be allowed directly to the attorney.</p> <p>Executor—Forfeiture to Commissions by Misconduct.—An executor does not forfeit his right to commissions or allowances by misconduct in office.</p>

<p>Estate of Decedent—Title of Heirs and Administrator to Land.— An administrator is in no sense the owner of the real property of his intestate; the title thereto vests in the heirs, and the administrator has only a lien thereon for the payment of debts and the costs of administration, and he acts only as agent or trustee for the heirs, who are the owners of the property.</p> <p>Estate of Decedent—Sale of Land by Administrator or Heirs.—An administrator cannot, even under an order of court so authorizing him, relinquish the title of his intestate to land within the forest reserve and select other land in lieu of it; but if the administration has so far advanced as to be clear of liabilities, then a deed by the sole heirs and devisees for this purpose will be valid.</p> <p>Estate of Decedent.—The Title of Devisees to the Land of the ancestor comes instantly upon his death; and, subject to the liens' of creditors and the temporary right of the administrator, they may at once dispose of the property.</p> <p>Estate of Decedent—Sale of Land Pending Administration.—Where, pending administration, the sole devisees, who are also the heirs and administrators, make a conveyance of a part of the land, as devisees and as administrators, the land remaining unsold should, if a probate sale afterward becomes necessary or expedient, be sold before the land that has been thus conveyed, and the grantees may contest a petition to sell the entire property.</p> <p>Judicial Sale—Estoppel to Deny Validity.—One who causes property to be sold under a void judicial proceeding, and retains the proceeds, cannot question its validity to the prejudice of others who have in good faith relied and acted upon it as valid.</p>

<p>The opinion in Estate of Lannon was among those destroyed in San Francisco by the conflagration of 1906.</p>

<p>Will.—Weakness of Mind is not the Opposite of Unsoundness, but of strength of mind, and unsoundness is the opposite of soundness; hence a weak mind may be sound and a strong mind unsound.</p> <p>Will.—Undue Influence is that Kind of Influence which prevents the testator from exercising his own judgment and substitutes in the place thereof the judgment of another.</p> <p>Will.—Undue Influence is Entirely Distinct from Unsoundness of mind.</p>

Petition by Sarah J. Brown et al. to revoke the probate of the will of William Brown.

<p>Witnesses—Competency of Husband and Wife.—When the executor and proponent of a will is made the defendant in a contest thereof, he and his wife, she being the sole, beneficiary under the will, may not refuse to testify because of the relation of husband and wife.</p>

<p>Administrator—Who Incompetent to Nominate.—A brother and sister of a deceased person who are themselves incompetent to administer his estate are incompetent to nominate an administrator.</p>

<p>Petition by J. M. E. Atkinson for the delivery of the residue of the estate to him as administrator of the estate of Carl J, Swenson at Seattle, Kings county, Washington. Also a petition by G-ustaf Albert Larson et al. for the distribution of this estate to the petitioners as-the next of kin and heirs at law of the decedent.</p>

<p>Interest on Money.—Interest is Only a Synonym for specific income.</p>

<p>Succession—“Child” Does not Include “Grandchild.”—In its ordinary, popular and legal signification the word “children” does not include grandchildren.</p> <p>Succession—Children.—Section 1386 of the Civil Code does not carry the distribution further than down to and among the children of brothers and sisters; and in default of them, the estate goes back in the ascending line to the ancestors and then down, as per subdivision 6 of the section.</p> <p>Succession—Bight of Grandniece to Inherit.—If a person dies without leaving surviving issue, wife, father, mother, brother, or sister, but leaving a niece and a grandniece, the grandniece is not entitled, under section 1386 of the Civil Code, to inherit from his estate.</p>

<p>Administrator—Person Incompetent to Act.—A person who has dissolute, intemperate, and improvident habits is not competent to act as administrator of his father’s estate.</p>