Volume 6 — Coffey's California Probate Decisions (1880–1915)

<p>Will—Testamentary Capacity—Intemperance and Improvidence.—A man may be greatly given to the use and abuse of liquor and yet be competent to make a will. He may be incompetent to manage an estate by reason of intemperance and improvidence and yet retain sufficient capacity for testamentary disposition.</p> <p>Will — Testamentary Capacity — Dissipation and Intoxication.—No rule of law denies to a man who is dissipated and habitually addicted to the excessive indulgence in intoxicants the right to make a will.</p> <p>Will—Testamentary Capacity.—The Habitual Use of Intoxicating Liquors, long continued and indulged in to excess, even though resulting in temporary fits of insanity or delirium tremens, does not alone raise a presumption of testamentary incapacity, if it appears that the testator was sufficiently sober when executing the will to know what he was doing, and that' he was not unduly influenced. Nor need he be shown to have been wholly sober at the instant of the execution of the will if it is proved that he was sufficiently so to understand the character and eSeet of his act, the extent of his property and the nature of the claims of his kin, and be able to act of his own will.</p> <p>Will—Intoxication of Testator.—In Order to Vitiate the Act, the testator, at the time of executing the paper, must have been under the influence of intoxicating liquors and to such an extent as to disorder Ms faculties and prevent Ms judgment.</p> <p>Will—Undue Influence.—The Fact of Drunkenness when the will was executed is relevant- upon the question of undue influence.</p> <p>Will—Testamentary Capacity—Lucid Intervals.—In Cases of Temporary Delirium, arising from the excessive use of stimulants, where no question of fixed and mental unsoundness is involved, the doctrine of lucid intervals does- not apply.</p> <p>Will—Intoxication of Testator—Burden of Proof.—Though the testator may have, when under the influence of liquor, acted like a maniac, still, if when subsequently sober he acted rationally and sanely, the burden is on the party asserting his testamentary incapacity, to show that he was incapable at the date of the execution of the will. The rule is the same where it conclusively appears that on one or more occasions prior to the time of execution, the testator had had attacks of dipsomania.</p> <p>Insanity.—The Habitual and Excessive Use of Intoxicating Liquors as a beverage may result in permanent insanity. By permanent insanity is meant in this connection not merely dipsomania, but a condition of fixed and continued mental unsoundness.</p> <p>Insanity — Presumption from Habitual Intoxication.— Permanent insanity cannot be presumed from proof of habitual drunkenness, however excessive or long continued.</p> <p>Will — Testamentary Capacity — Person Under Guardianship.—The fact that the testator, at the time of the execution of the will, is in charge of a guardian as an habitual drunkard, while relevant as some evidence of incapacity, is never conclusive that a will is invalid.</p> <p>Insanity.—Proof of Habitual Drunkenness is Relevant upon the issue of insanity, its weight depending upon all the circumstances of the case.</p> <p>Insanity.—Whether Long-continued Inebriety has or has not Impaired the mind and destroyed a sound and disposing memory is a question of fact which will depend upon all the circumstances, including the physical and mental condition of the testator, his age and sex, his previous life and habits and present surroundings.</p> <p>Insanity.—In Determining Whether Habitual Drunkenness has or has not resulted in permanent insanity, or delusions assimilating to that condition, the evidence must not be confined to the personal habits of the testator, but the surrounding circumstances and his bodily condition must also be considered.</p> <p>Will—Intoxication.—No Presumption That a Man was so Drunk when he made a will that he was incapable of making it properly arises from proof that he had been drunk at a prior period or that he was an habitual drunkard.</p> <p>Will.—The Intoxication of the Testator, if It is Proved to exist at the date of the execution of the will, must, in order to invalidate it, have been of such a character as to have deprived him of judgment while executing it.</p> <p>Will.—In Order That the Will of a Drunkard may be Invalidated because of his habits of intoxication, it must appear affirmatively, either that his mind was totally destroyed thereby or-that' he was so far under the influence of intoxicants at the instant of its execution that he was incapable of comprehending the nature, extent and disposition of his estate and his relations to those who have a claim upon his bounty.</p> <p>Will—Habitual Drunkard—Judicial Determination.—The burden of proof is upon the contestant, even where it conclusively appears that the testator has been judicially pronounced an habitual drunkard, to show that he was in such a condition from intoxicants at the time of execution as not to have testamentary incapacity.</p> <p>Will.—In Testifying to the Intoxication of the Testator, a witness is merely stating his opinion as to his condition, and any person who knows the testator, though he be not an expert, may testify to the fact that he was intoxicated upon a stated occasion, for the subject is one upon which any intelligent person is competent to form an opinion.</p> <p>Will—Intoxication of Testator.—A Witness will not be Allowed to State that, in his opinion, the testator was so drunk at the date of execution as not to be capable of making a valid will, or to give his opinion that he was unduly influenced in the making of his will by reason of intoxication.</p> <p>Will.—A Witness may Testify That, in His Opinion, the Testator was an habitual drunkard, though his habitual drunkenness has never been judicially determined.</p> <p>Will.-—Where the Testator is Alleged to have Been Drunk at the time he executed the will, it is admissible to prove his conduct upon previous occasions- when he was under the influence of drink, to illustrate his usual manner of acting when intoxicated.</p> <p>Will.—The Fact That the Testator was an Habitual Drunkard may be proved by the evidence of his commitment as such, with proof that he has not adopted reformed habits of living.</p> <p>Will—Intoxication of Testator.—It may be Shown That the Testator had an opportunity to procure liquor or that he had it in his possession, but his intoxication at any particular point of time cannot be inferred from the fact that at that time he had intoxicating liquors in his possesssion.</p> <p>Will—Intoxication of Testator.—Where It Appears That the Testator had been drinking a short time before the execution of the will, evidence may be received to show how long it usually takes for a person to get sober. The period of time required for a person to become sober depends primarily on the person, and secondly on the quantity and nature of the intoxicants consumed.</p> <p>Will—Epilepsy.—No One Possesses Testamentary Capacity during the actual paroxyms of an epileptic seizure, and the importance of proof that the deceased was subject to epileptic fits depends wholly on the proximity of the fit to the time of the execution of the will. The fact that the testator has had an epileptic seizure raises no presumption of continuing incapacity, and proof of epilepsy does not cast the burden of proving a lucid interval upon the proponent.</p> <p>Administrator.—No Person is Eligible or Entitled to Serve as administrator who is incompetent to execute the duties of the trust by réasoh of drunkenness, improvidence or want of understanding or lack of integrity, and it must be' presumed that the appointing power discharged its duties and appointed a sane, sober, provident and honest man to execute the trust of administrator.</p> <p>Evidence.—A Judge is not at Liberty Judicially to Poise His Personal impression against the solemn statement under oath of two reputable witnesses to the factum.</p> <p>Will.—A Testator has No Legal Burden Imposed upon Him to Provide for His Uncle, and a failure so to provide is neither unnatural nor necessarily undutiful, especially where the person unprovided for is unknown or thousands of miles distant, and where no communication or correspondence passed between such collateral. relative and the testator.</p> <p>Will—Undue Influence.—The Mere Existence of Confidential Relations between the testator and the principal beneficiary under his will, who is also the proponent, does not raise the presumption that • the will was procured by the exercise of undue influence nor impose on the proponent the burden of disproving undue influence, fraud or coercion; there must be, in addition to that -fact, evidence of his active interference in procuring the execution of the will before that presumption arises.</p> <p>Will.—If a Presumption is to be Indulged, It is Rather in favor of a will when the testator leaves property to one with whom he had intimate and confidential relations during his life, as it is usually designed to give property to those whom the testator desires to favor.</p> <p>Will.—The Declarations of a Testator in Support of His Will are admissible to establish freedom of volition and exemption from undue influence and to maintain the testamentary instrument as having been made in consonance with the wishes of the testator.</p> <p>Will—Undue Influence.—A Person cannot be Called upon to Prove that a transaction with which he had nothing to do, was a fair one; hence no presumption of undue influence can arise as to such person.</p> <p>Evidence.—Neither the Verdict of a Jury nor the Decision of a Court can rest on surmise, suspicion or conjecture, howsoever strong.</p>

<p>Will—Due Execution—Evidence of Scrivener’s Experience.—On the issue of due execution of a will, the testimony of an attesting witness who drew the instrument that he has had experience in drawing wills is admissible.</p> <p>Will—Competency of Testator—Evidence.—On the issues of mental competency of a testator and undue influence in the execution of his will, evidence of the pecuniary circumstances of a legatee and of her husband is inadmissible.</p> <p>Will—Failure of Memory of Witness.—The fact that an attesting witness to a will cannot remember the details of the transaction does not cast a cloud upon the due execution of the instrument established by other direct evidence and circumstances.</p> <p>Will—Competency of Testator—Age and Physical Infirmities.-—Evidence of the advanced age of a testator and of his physical infirmities, if they did not impair the operation of his mind in the making ,of his will, does not establish testamentary incapacity.</p>

<p>Will—Competency of Executor as Witness.—The executor named in a will is not, by reason of interest, disqualified to act as an attesting witness.</p> <p>Will—Competency of Testatrix—Instrument Itself as Indicating.— A will itself is an evidence which must be considered by the court as establishing the mental integrity of the testatrix.</p> <p>Will—Tests of Testamentary Capacity.—If a testator has sufficient memory and intelligence fairly and rationally to comprehend the effect of what he is doing, to appreciate his relations to the natural objects of his bounty, and understand the character and effect of the provisions of his will; if he has a reasonable understanding of the nature of the property he wishes to dispose of, and of the persons to whom and the manner in which he wishes to distribute it, and so express himself, his will is good. It is not necessary that he should act without prompting.</p> <p>Will—Constituents of Testamentary Capacity.—The constituents of testamentary capacity are that the testator has an idea of the character and extent of his property, and is capable of considering the persons to whom and the manner and proportion in which he wishes his property to go.</p> <p>Will—Capacity of Testatrix Established.—The testatrix in this ease responds to the foregoing conditions. She was competent to make her will and was free from undue influence.</p>

<p>Wills—Interpretation of Technical Terms—Testament Drawn by Notary.—The rule of relaxation in the interpretation of technical words in a will, when the instrument has been drawn by “an unskilled hand,” is here discussed in relation to a will drafted by a notary public.</p> <p>Wills—Intention of Testatrix—How Ascertainable.—In interpreting paragraphs of a will the intention of the testatrix must be found in the contest, and it must accord with the law. The question is not what she meant, but what her words mean; and the intention must dearly appear to be lawful.</p> <p>Wills—Direct Devise or Void, Attempt to Create Trust.—A devise in this case to the executor of the will as trustee for two designated beneficiaries “and the survivor of them for and during their lifetime” (both of whom predeceased the testatrix), and thereafter to “convey and transfer” the property to certain named persons, is held not a. direct devise but a void attempt to create a trust.</p> <p>Wills—Meaning of Word “Children.”—In the ordinary and grammatical sense the word “children” implies immediate offspring. This, is its natural and primary sense.</p> <p>Wills—Canons of Construction—Duty of Courts to Obey.—In interpreting wills courts are bound to carry out canons of construction, no matter how technical they may seem to those who have not studied their philosophy, and one of these rules is, most imperatively imposed, that courts must stand by the words of the will.</p> <p>Wills—Interpretation—Consideration of Extrinsic Evidence.—In determining the intention of a testatrix the court can consider the circumstances surrounding the execution of the will only when inconsistencies or ambiguities in the language used make the intention as. declared by the will doubtful.</p> <p>Wills—Interpretation—Bequest to Children.—In construing the will in this ease the court finds that the bequest to “children” in paragraphs 8 and 9 is to be construed as to a class; that it comprehends-only those who were living at the death of testatrix;, that there is n» ambiguity in the testamentary expression, and the intention of testatrix is therein evident; that upon the decease of testatrix there were and are' now persons within the descriptive terms of the will; that the word “children” must be construed and interpreted as “immediate offspring”; and that such persons are entitled to distribution.</p>

<p>Will—Invalid Trust.—A Bequest of All the Testator’s Property in trust, to convert the estate into cash and keep the proceeds invested and to pay the income thereof and such portion of the principal as may be necessary “until such time as the youngest of my two said children would, if alive, have reached the age of twenty-five .years, at which time the remainder of my estate shall be, divided equally between my two said children, or if one be dead, then to the-survivor of them,” creates a trust for a term of years and is invalid, being in violation of section 716 of the Civil Code of' California, as it is possible in such case that the power of alienation is suspended by limitation for a longer period than during the continuance of lives of persons in being.</p> <p>Trust Void Because Discretionary.—A Trust Directing the Estate to be converted into cash and for the trustee to keep the proceeds invested and which directs that it “shall pay the income therefrom and such portion of the principal thereof in case such payment be necessary in its judgment” is void because it is discretionary and not imperative upon the trustee as to what it shall do. . It substitutes the judgment of the trustee for the judgment of the! testator.</p> <p>Trust—Foreign Corporation must Comply With Laws to Act as Trustees.-—A foreign corporation, before it can be authorized to act as a trustee of an estate in this state, must comply with all of the laws of the state of California relative to trust corporations, the same as a resident corporation.</p>

Amended application to revoke probate of will and contest and opposition to probate of same. Motions to strike out certain portions of application and contest.

<p>Application for probate of will; contest.</p>

<p>Petition by legatees for final distribution.</p>

<p>Wills—Execution—Subscription at End—Signature of Testatqr, in Attestation Clause.—Where a testator writes his name in a blank space m the attestation clause of his will, instead of at the usual place, the instrument will not be denied probate as not “subscribed at the end thereof,” when it distinctly appears that it was intended by him, and so understood by the witnesses, as his subscription of the will.</p>

<p>Application for distribution.</p>

<p>Fraud—Pleading—Necessity and Manner.—Fraud is not judicable on implications or inferences; it must be expressly charged in the complaint by direct averment or allegation.</p> <p>Will—Mental Capacity of Testator—Will Itself as Evidence.—On the question of the mental soundness of a testator, the will itself is evidence in connection with the sworn testimony of the draftsman that the deceased- dictated the details to him.</p> <p>Will—Mental Incapacity of Testatrix—When not Shown.—That a testatrix at the age of eighty-four was incompetent to dispose of her property is not shown by a witness who testifies: “Regarding money matters I formed a very strong opinion that she was in her right mind, for one thing, but in regard to other matters she did not seem to be right. But in money matters she seemed to be vfery strong.”'</p> <p>Will—Dotage on Part of Testatrix—Insufficiency of Evidence.— That a woman in her old age recapitulates in her will her struggle to acquire a competence and expresses gratitude for aid received and a desire to reward through legacies those extending it to her, is not evidence of dotage such as to impair testamentary capacity.</p> <p>Will—Testamentary Incapacity—Gift to Strangers as Showing.— That a woman of eighty-four by her last will seeks to benefit strangers in blood who have benefited her, instead of leaving all her estate to collateral relatives, does not tend to show that a life-long addiction to drink in 'excess and other bad habits have impaired her mind.</p> <p>Will—Undue Influence—Presumption of Exercise.—It is not to be assumed that persons locally far separated from a testatrix exerted a personal undue influence over her or that persons about her exerted such an influence over her in the interest of the absent persons.</p> <p>Stipulation as to Evidence—Reference to Outside Facts.—Counsel after signing a stipulation to the effect that the statement contains all the material evidence is in no condition to argue that the court should look outside for facts to base its decision upon.</p> <p>Will—Duty of Testator to Provide for Nephews and Nieces.—An uncle or an aunt is under no obligation to provide for nephews or nieces either when living or by will.</p> <p>Will Contest—Burden of Proof.—In proceedings to contest the validity of a will the burden of proof is on the pterson asserting the invalidity.</p> <p>New Trial—Duty of Court on Motion to Grant.—The trial court is not only authorized but in duty bound, on motions for a new trial, to scrutinize the evidence carefully, in cases where claimed to be insufficient, and to grant new trials whenever, in its opinion, the evidence the decision or verdict was based on is insufficient to justify the conclusion.</p> <p>Will—Undue Influence—What Constitutes.—A will is not to be set aside on the ground of undue influence unless there is proof of a pressure which overpowered and bore do^pn the volition of the testatrix at the very time the will was made.</p>

<p>Undue Influence.—To Show Such Undue Influence upon a Testatrix as must invalidate the will, there must be a preponderance of evidence of such influence operating upon the very act of making the will, and the burden of proof is on the contestant.</p>

<p>Insane Delusions.—Prejudices, Dislikes and Antipathies, however ill-founded or strongly entertained, cannot he classed as insane delusions.</p> <p>Insane Delusions.—If One’s Mind is Tricked or Deceived into a false opinion, it is played upon, or deluded.</p> <p>Insane Delusions.—An Insane Delusion is the Spontaneous Production of a diseased mind leading to the existence of something that either does not exist or does not exist in the manner believed—a belief not entertainable by a rational mind, yet so firmly fixed that neither argument nor evidence can convince to the contrary.</p> <p>Insane Delusions.—In order to Attack Successfully a Will on the ground of insane delusions had by the testator, it must be shown that such delusions operated to cause the production of the will.</p> <p>Undue Influence.—The Burden of Proof, in the Case of a Will Contest on the ground of undue influence, is on the person contesting.</p> <p>Undue Influence.—Undue Influence, Such as Invalidates a Will, is something more than mere general influence not brought to bear upon the testamentary act; it must have been used directly to procure the will and have amounted to coercion, destroying the free agency of the testator.</p> <p>Undue Influence.—If a Motive or an Opportunity for the Exercise by anyone of undue influence upon a testator is shown, the law will not presume from this that such was exercised, and the showing does not shift the burden of proof.</p> <p>Undue Influence.—Proof That a Person’s Influence Over a Decedent was great would not be proof that it was unlawful or undue, and from the existence of it no presumption would arise of its actual unlawful exercise, even though it had manifestly operated on the decedent’s mind in making a testamentary disposition.</p>

<p>Application for settlement of account of executor and for an order for sale of personal property.</p>

<p>Application for final distribution; construction of clause in will.</p>

<p>Annuity—Protection of Residuary Legatees.—When a testator gives his brother a specified sum per annum, to be paid during his lifetime from the interest of money to be invested by the executors, and directs the principal sum and the overplus interest to be paid to the residuary legatees when the annuity ceases, the investment of the fund should be made with due regard to the interests of such legatees.</p> <p>Annuity—Investment of Fund.—When a testator bequeaths to his brother a specified sum per annum for life, payable quarterly, the principal sum and the overplus interest thereon to be divided among the residuary legatees when the annuity ceases, the court, in order to provide for the required income, will direct the retention of city real property belonging to the estate and yielding an income slightly in excess of the annuity, rather than direct, an investment in United States bonds.</p> <p>Annuity—Interest and Income.—Where a testator directs his executors to place funds “at interest” to provide for the payment of an annuity, the investment may nevertheless be made in real estate, if such a course seems preferable to the loaning of money.</p> <p>Interest on Money.—Interest is Only a Synonym for specific income.</p>

<p>Interest on Legacy—Code and Common-law Rule.—At the common law, and under sections 1368 and 1369 of the Civil Code, a pecuniary-legacy bears interest at the legal rate from one year after the demise of the testator.</p> <p>Interest on Legacy—Settlement Delayed by Will Contest.—A pecuniary legacy bears interest from one year after the death of the testator, where the settlement of the estate is delayed, without fault, of the administrator, by a contest of the will.</p>

<p>Advancement—Definition.—An Advancement is a Provision made by a donor for a child or other heir during the donor’s lifetime, by gift of property on account of the share to which the heir would be entitled as heir after the donor’s death.</p> <p>Advancement—To be Considered Part of Decedent’s Estate.—Under the Civil Code any advancement made by a decedent to a child or other heir is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by the heir toward his share of the estate.</p> <p>Advancement—How Created.—Under the code such advancement can be created only by a writing showing an intent of the donor to create an advancement; and such intent must be exhibited in one of three ways: It .must appear in the instrument of transfer; or it must be acknowledged in writing by the heir, as an advancement; or it must be charged, in writing, by the donor, as an advancement.</p> <p>Advancement—Intent—Contemporaneous Writing. — To give the character of an advancement to a gift, the intent must appear by a writing made contemporaneously with the gift. Such character cannot be imparted, ex post facto, by a writing at a later date.</p> <p>Advancement—Change of Gift to Advancement.—A donor may change an advancement into an absolute gift without the knowledge or consent of the donee, but he cannot change an absolute gift into an advancement without the consent of the donee in writing.</p> <p>Advancement — Partial Intestacy — Code Changes.—An intent to alter a pre-existing law is' not to be inferred from a mere change of phraseology in a revision of prior statutes. Under the English statute, and under the statutes of many states of the Union, the rule is well settled that the doctrine of advancements is applicable only in cases of total intestacy. An examination of the history of the code and a comparison of code contexts show that the California codifiers did not intend to make such a distinction in the use of the word “intestate” in the old statute, and the word “decedent,” in sections 1395-1399 of the Civil Code, as would justify the court in holding that it was the purpose to change the well-settled rule that the doctrine of advancements can be invoked only in cases of total intestacy. Therefore .the doctrine of advancements cannot be invoked in cases of partial intestacy.</p> <p>Advancement—Where a Parent in His Lifetime, had Made Large Gifts to two of his sons, and in his will made several years later, declared: “I make no provision in this will for my sons J. and A., for the reason that I have already given to them a large part of my estate,”—such declaration does not charge such gifts as advancements under the code. Where a donor has made an absolute gift there is no method in which he can make it effective as an advancement short of a legally executed will disposing of his property.</p>

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

<p>Executors—Accounts.—By Accepting the Office of Executor a person is presumed to consent that all his acts in that capacity shall be subject to judicial review, and to understand that the court of probate has the power, on the settlement of his account, to determine the extent of his liability to the estate.</p> <p>An Executor is Accountable for All the Assets that come into his possession, excepting where loss may have been suffered without his fault.</p>

<p>Applications of administrator and attorney under section 1616, Code of Civil Procedure, as amended in 1911.</p>

<p>Application of Georgiana A. Adamson for partial allowance of compensation of W. H. R. Adamson, deceased, executor.</p>

<p>Executors—Compensation.—Manner of fixing commissions stated.</p>

<p>Executors—Commissions—Property Set Apart as Homestead.—The setting apart of a house and lot by the court as a homestead does not affect or impair the executor’s right to commissions thereon.</p> <p>Executors—Commissions—Extent of Bight.—The executor is entitled to full commissions on all the estate not distributed in kind, or not involving for him labor beyond its mere custody, and, besides this, on property, to the extent of twenty thousand dollars, that is distributed in kind and does not involve such labor for him.</p>

Jurisdiction of court to declare invalidity of trust in favor of absent minors upon petition for partial distribution without further notice than that required to be given by sections. 1659 and 1633, Code of Civil Procedure.

<p>Application for settlement of eighth, ninth, tenth, and eleventh accounts of trustees.</p>

<p>Administrator—Rivals for Appointment—The Daughter of the Intestee, who has been granted special letters of administration, is in this ease granted general letters, as against the public administrator and a son who, by reason of dissolute habits, is incompetent to act.</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> <p>Administrator—Person Incompetent to Nominate.-—One who, by reason of dissolute, intemperate and improvident habits, is incompetent to act as administrator of Ms father’s estate, has no right to nominate his copetitioner, the public administrator, to act as administrator in his place, or to nominate him to act jointly with the public administrator.</p>

<p>Revocation of Letters of Administration—Competency of Parties.— Where letters of administration with the will annexed have been granted to the public administrator on the estate of a deceased nonresident, a resident brother of the decedent, though not entitled to letters on an original application because of section 1365 of the Code of Civil Procedure, may nominate a stranger to petition for a revo- ’ cation of the letters granted and for the issuance of letters to the petitioner, and the petition will be granted, both the nominor and the nominee being competent, under section 1369 of the Code of Civil Procedure, to serve as administrators.</p>

<p>Notice to Creditors—Decree Establishing—When Made.—An executrix, having caused notice to creditors to be duly published, is entitled to a decree establishing that due notice to creditors has been given, although the attorney for the estate, at whose office claims were by the notice required to be presented has removed his office, during the period designated in the notice, within which claims might be presented.</p> <p>Notice to Creditors—Power to Give Further Notice.—Notwithstanding the removal of the executrix’s place for transacting the business of the estate, the court has no power to direct the giving of a further notice.</p> <p>Notice to Creditors—Change in Place of Presenting Claims— Eights of Creditors.-—The decree establishing due notice to creditors should not be refused under these circumstances because of the bare possibility that there may exist some creditor who, by reason of the removal, has been unable to properly present his claim. Having been put on inquiry by the notice which was duly published, he is obliged to take such further steps as may be reasonable to ascertain the present place of business of the estate.</p>

<p>Probate Homestead—Court must Set Apart.—In a proper case the court must, on the application of a surviving husband, set apart a probate homestead; there is no discretion.</p>

<p>Amended petition for family allowance; demurrer by executrix.</p>

<p>Will—Interpretation.—Property Coming to Estate After Death.— If a testatrix by her will disposed of all the property she knew she owned to her three children, but not in uniform ratio, other property coming into the estate after her death but before final distribution should be' distributed in equal shares according to the rules of succession, nowithstanding the spirit of the will.</p>

<p>Administrator’s Account—Trustee in Bankruptcy may Contest.— A trustee in bankruptcy of an heir has the right to contest an account of the administrator of the decedent.</p>

<p>Application for family allowance by Adele Brun Delaporte, as widow of deceased.</p>

<p>Community or Separate Property.—A Declaration by a Testator in His Will that the property disposed of is his separate estate is not conclusive.</p>

<p>Inheritance Tax—Nature and Effect.—The inheritance tax is not a tax in the ordinary sense of the word, but is a charge imposed by law for the privilege of inheriting or taking by will; since this is. a right only by statutory enactment and is entirely under the control of the legislature.</p> <p>Inheritance Tax—Right of Legislature to Impose.—Each state has the right, unless prohibited by its constitution, to make a charge for the privilege of receiving by will or by inheritance any property within its borders.</p> <p>Inheritance Tax—Situs of Corporate Stock.—While for most purposes a chose in action adheres to the person of its owner, for the purpose of administration it does not. For such purpose the situs is where the debtor resides. Stocks of California corporations constitute property of a decedent actually in this state.</p>

<p>Application for settlement of final account and distribution.</p>

<p>Inheritance Tax—Exemptions—Adopted Child.—The claimant for-exemption in this case is found to be “a child adopted” or “child to whom . . . decedent stood in the relation of parent,’- within the, meaning of sections 5 and 7 of the inheritance tax law.</p>