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PROBATE COURT

OF THE

CITY & COUNTY OF SAN FRANCISCO

 

I  N  D  E  X.

 

 

Pages 271-290

 

Account and Accounting.

Appraisement.  Administrator.  The account of an administrator cannot be settled, until there has been an appraisement of the property in the inventory on file.  Selna, Ubaldo, E. of, 233.

 

Attorney’s Fee.  When it appears that the items paid for attorney’s fees were for services rendered executors for their individual benefit as legatees, such items should be disallowed.  Chinmark. Moses, E. of, 128.

 

Commissions.   Homestead.  Executor cannot tax commissions on the homestead property.  Reck, Henry, E. of, 59

 

Custody of Funds.  Although the administrator may not be very methodical in his mode of keeping his accounts, yet, if it does not appear that he has used the funds of the estate for his own benefit, he will not be chargeable with interest.  Beideman, J. C., E. of, 66.

 

Deceased Executor.  A claim against the estate of a deceased executor must show, not only, that his accounts as executor are unsettled, but also, that on setting them, there would be a balance due from him; otherwise distribution will not be delayed.  Halleck, H. W., E. of, 46.

 

Estooped by,  Funds treated as a cash item in an account.  Administrator is thereby estopped from afterwards showing that they were loaned out at the time of rendition of the account.  Lacose. Jean, E. of, 67.

 

Filing of.  The time which is fixed by statute for the filing of account is directory merely.  There may be good reasons for delay.  Failure to file is no ground in itself for revoking letters.  Stow, J. W., E. of, 97

 

Funds from foreign jurisdiction.  Moneys received by a guardian from a foreign country must be accounted for here, unless there is a positive showing that such guardian has accounted for them before a foreign tribunal; the presumption in the case being, not that the guardian has accounted for them abroad, but that the foreign court has permitted their transfer here, to be administered at the common domicile of guardian and ward.  Secchi, minors, E. and G. of, 225.

 

                  Grounds for re-opening account.  A minor, who has come of age is permitted to re-open executor’s

                   account for

                        reasons,

1.      That executor, in the capacity of attorney in fact for a claimant, made affidavit to a claim which was subsequently allowed by himself, as executor, and paid by him in course of administration.

2.      The executor presented his individual claim, which is allowed by his co-executor, but not by the Judge, until after time for presentation of claims has expired.  Keenan, John C., E. of, 186.

 

Guardian’s.  An agreement by guardian appointed upon a contest for letters that he will, if appointed, maintain and educate the ward, which agreement is embodied in the order of appointment binds the guardian; and his charges in his account for items for maintenance should be disallowed.  Barg, John C., E. of, 69.

 

Rent of property claimed as homestead, where the premises exceed in value $5,000.  The widow  (being administratrix) having remained in possession of premises claimed as homestead after the return of inventory, and it appearing that the property so claimed exceeds in value $5,000, the widow, in her account, should be charged with rent proportioned to such excess in value.  Titcomb. A. H., E. of, 55.

 

Separate Estate.  Homestead.  An unimproved lot, never used as a residence, set apart to the widow, there being no children, and the heirs being no-resident brother and sisters;

Application by heirs, that the widow, as administratrix, be compelled to render another account, and to include such real estate therein, (they claiming it to be separate property of decedent) and, for distribution, denied, the heirs not making any showing that administratrix had received any farther or additional funds in the estate.  Burns, Bernard, E. of, 155.

 

Settlement of Account.  Not a judgment in the sense that would make a balance due from executor, since deceased, a preferred claim against his insolvent estate.  Kehoe, John, E. of 127.

 

Taxes should be paid out of estate, during administration, on property conditionally devised, pending the compliance of devisee with the condition.  Broad, Charles, E. of, 188.

 

                        See Administration:  Commissions.

 

Acknowledgment.

Marriage Contract.  Such contract (Hittell’s General Laws, vol. 1, 3576), must be acknowledged, to be at all effectual.  The due acknowledgment is part of its execution; and a contract signed before marriage, but not acknowledged until eight year thereafter is a nullity.  Patton, Charles, E. of, 241.

 

Action Pending.

Presentation of claim.  The action was pending and verdict had in decedent’s lifetime; but no judgment entered until after his death, when the executors were substituted; appeal had; and final judgment, to be paid in due course of administration, no claim having been presented.

HELD, that the objection to want of presentation should have been made in District Court; and that comes too late after judgment.  Page, Thos. S., E. of, 61.

 

Administration.

Appraisement.  The account of an administrator cannot be settled until there has been an appraisement of the property in the inventory on file.  Selna, Ubaldo, E. of, 233

 

Attorney’s fee, disallowed executor, where it appears to have been incurred by executor, in his own behalf, in litigating a conflict with the estate.  Stott, William, E. of, 168

 

Bond.  In the case of property pledged by decedent, when it is necessary to fix the value of personal estate, so as to arrive at the amount of the administrator’s bond, the margin value of the pledge over the debt secured is to be deemed the value of the estate’s property therein.  Kidd, George W., E. of, 239.

 

                        Claim.  The allowance of a claim stays the running of the Statute of Limitations.  Schroeder, H., E. of, 7.

 

Claim allowed contingently by one executor and reported by him in his first annual account; thereafter approved by the Probate Judge; and objected to on hearing on petition for sale of real estate; and the question as to it, reserved.

HELD, that the heirs should be allowed to contest it, there having been no final adjudication on such claim.  Whitmore, H. M., E. of, 103.

 

Commissions.  In case of property undergoing partition in the District Court, the administrator should be allowed commissions only on the net proceeds of partition sale coming to estate.  Marvin, C. B., E. of, 163

 

Commissions.  Successive administrators.  Full commissions, not allowable until final closing of estate.  Marvin, C. B., E. of, 163

 

Delay in.  Administrator, who, for no good reason, delays filing his account, is chargeable with interest.  Seligman, Louis, E. of, 8.

 

Devise.  Property, subject, at death of testator, to an interest bearing mortgage.  The devisee, entitled, under Sec. 1513, C. C. P., to have the mortgage paid out of the moneys of the estate.  Phinney, Arthur, E. of, 239.

 

Distribution.  All claims against the estate by executor must be settled before distribution.  Executor cannot  152

 

Expenses of Administration should be assessed proportionately upon decedent;s common and separate estate.  Patton, Charles, E. of, 241

 

Garnishment, pending.  Before distribution, executor cannot be subject to garnishment process, for the undistributed share of an heir, who has never been sued for debt.  Sime, John, E. of, 100.

 

Grant of Letters.  Nominee of non-resident widow, entitled in preference to Public Administrator.  Cotter, Henry B., E. of, 179; Robie, A. H., E. of, 226.

 

Grant of Letters.  The Public Administrator has a right to administer only in cases of intestacy.  Where there is a will, the Court has discretion in the appointment.  Nunan, Jeffrey, E. of, 238

 

Grant of Letters.  As against a creditor, the Court exercises its discretion in appointing the nominee of the grandmother of an unmarried minor as administrator.  Wyche, Mary, E. of. 85.

 

Grant of Letters.  Chinaman.  The Court prefers to appoint the Public Administrator rather than a Chinaman in cases of administration with the will annexed.  Yee Yun, E., 181.

 

Grant of Letters; Adopted son.  A recital in will, “A.B., my adopted son,” is prima facie evidence of such relationship, so as to entitle the person named to apply himself, or to nominate applicant for letters of administration upon the estate of adoptive father.  Keenan, John C., E. of, 186

 

Grant of Letters.  Executor.  Incompetence of person named in the will to take letters by reason of his immoral character.  A man “who lives by his wits,” not a proper subject to be awarded executorship.  Plaisance, Ida, E. of, 117.

 

Grant of Letters.  No Estate.  Where the real object of the application for administration, there being no estate, is to clothe a person with the trust, so as to make him defendant in an action to quiet title, the petition will be denied.  Murrary, F. X., E. of, 208.

 

Grant of Letters.  Non-residence.  A non-resident executor has no standing in Court which would entitle him to nominate an administrator.  Murphy, Mary, E. of, 185.

 

Homestead.  The widow (being administratrix) remained in possession of premises claimed as homestead after return of inventory, such premises exceeding $5,000 in value.

HELD, that she should account for rent thereof to be proportioned to such excess in value.  Titcomb, A. H., E. of, 55.

 

Homestead.  When the Probate Court sets aside a homestead, it, thereafter, loses jurisdiction over the property; and cannot order a sale of it to pay mortgage lien on the lot.  The remedy is for foreclosure.  Rondel, E. F., E. of, 70.

 

Insolvent Debtor.  It is not the duty of the executor to pursue an insolvent debtor at the expense of the estate, unless he has good ground to believe that something may be recovered.  Stow, J. W., E. of, 97

 

Interest.  Executor chargeable with interest to be compounded with annual rests, if he mingles the money of the estate with his own.  Stott, William, E. of, 168.

 

Order of Sale of Real Estate.  It is no ground of opposition to the granting of an order of sale of real estate, that there is a litigated claim held by estate against the grantee of a devisee, on which claim, the debtor claims there is nothing due.  It is not necessary to abide the determination of such litigation before granting the order of sale.  Schroeder, H., E. of, 7.

 

Residence.  Jurisdictional.  Residence inferred from acts of decedent.  His conflicting acts and assertions as to his intention.  Where his election of residence was not sincere; but for a specious purpose, it may be disregarded.  Samuel, Michael J., E. of, 228.

 

Taxes, Specific devise.  Pending administration, executor should pay taxes on specific devise.  Devisee should reimburse him at distribution:  should he fail to do so, executor may have an order of sale of the devised property to reimburse himself.  Mogan, A., E. of, 80.

 

Witness.  A creditor can testify as to the fact of the indebtedness of decedent to him on hearing of application for letters.  Welch, John, E. of, 202.

 

See Account:  Grant of Letters.  Distribution

 

Administrator.

Custody of funds.  Administrator entitled to the custody of funds of estate.  May deposit them in bank to his credit.  Will not be chargeable with interest, unless it appears that he has used them for his own benefit, even though his accounts are not methodically kept.  Beideman, J. C., E. of, 66.

 

Loaning Funds of Estate.  Administrator liable for any loss accruing by parting with custody of funds for purposes other than their security.  Lacoste, Jean, E. of, 67.

 

See Account and Accounting:  Administration.

 

Adoption.

Paternity:  Acts of paramour in recognition of his paternity of the alleged spurious offspring of an adulterous wife, cannot be deemed an adoption so as to entitle child to inherit from him.  Sbarboro, Giovanni, E. of, 255.

 

Recital in Will.  A statement in will, “A. B., my adopted son,” is prima facie evidence of such relationship, so as to entitle the person named to administer himself, or to request the appointment the appointment of administrator.  Keenan, John C., E. of, 186.

 

Adultery.

Homestead.  A wife who, prior to her husband’s death, has been notoriously unfaithful to him, and is not, at his death, a member of his family is not entitled to have a homestead set apart to her by Probate Court.  Cameto, Martin, E. of, 42.

 

Offspring.  The adulterous offspring of an unfaithful wife, there being no cessation of intercourse between her and her husband, cannot claim, as illegitimate child of her paramour, to inherit from him.  Sbsarboro, Giovanni, E. of, 255.

 

Advancement.

Will.  Advances to heir in lifetime of his father.  Charge to Jury.  Low, C. L., E. of, 143.

 

Affidavit.

Notice of Probate.  Recitals in decree showing that jurisdictional notice has been given where the affidavits on file are defective, though not antagonistic, can be attacked, only, by a showing that they are, in point of fact, untrue; and further, that the Court has been imposed upon.  Rice, John D., E. of, 183.

 

Alcoholism.

Will.  Intemperance to a degree causing mental incapacity in proposed testatrix.  Hannigan, Hepsabeth, E. of, 135.

 

Will.  Mental incapacity arising from alcoholism.  Charge to Jury.  Black, James. E. of, 24.

 

Will.  Mental incapacity arising from alcoholism.  Opionions of Experts.  Onstructions to Jury.  O’Keefe, E. of, 154.

 

Alien.  Non-resident.

A Non-resident Alien, after ten years, (possibly after five), loses by escheat, and interest in estate which might entitle her as heir to apply for revocation of probate of will.  Broderick, David C., E. of, 19.

 

Appeal.

Stay.  An appeal works to stay of proceedings in the matter of contest of a will.  Cunningham, Mary, E. of, 214.

 

Appearance.

Minors.  The appearance of minors in Court is no waiver of the statutory notice for probate of will by mailing or personal service.  Such appearance does not invest the Court with jurisdiction to proceed with the hearing.  It would be ineffectual to attempt to cure the defect by a continuance for the purpose of giving the notice.  All proceedings subsequent to the petition for probate must be had de novo. Barteis, Conrad, E. of, 130.

 

 

Appraisement.

The Account of an administrator cannot be settled, until there has been an appraisement of the property in the

inventory on file.  Selna, Ubaldo, E. of, 233.

 

Assessments.

Risk of Payment.  The executor must assume the risk that the stock will return the expenditure, if he pays

assessments upon shares of stock held by estate.  Stow, J. W., E. of, 97

 

Assignment of Share of Estate.

Distribution.  Assignee of heir is entitled to distribution directly to himself.  But the Court cannot distribute property under an assignment coupled with a defeasance.  Hite, Ormsby, E. of, 232.

 

Distribution.  Assignee of devisee who dies pending administration, the devise being to two devisees and to the survivor at distribution.  HELD. That such assignee took nothing by the assignment.  Cronin, John and Johanna, E. of, 252.

 

Attestation.

Will.  At the time of executing a will, there must be some form of request on the part of the testator to enable the witnesses to properly attest the will, though such request need not be in words.  Fusilier, John, E. of, 40.

 

Will.  Name of proposed testator written by a person not a witness to the will; and not in the presence of the witnesses. 

HELD, that testator should have called the attention of the witness to the fact that he had signed the document; and that it had been subscribed by him or by his authority.  Taney, Patrick, E. of, 210.

 

Will.  Absence of Attesting Clause.  No formal attesting clause necessary.  Request to witnesses to sign need not be a direct request.  Crittenden, Howard, E. of, 50.

 

Will.  Mark.  A witness may attest the mark of his illiterate co-witness to a will.  Derry, William R., E. of 202.

 

                        See Will and Signature.

 

Attorney appointed by Court.

No Waiver of Minors’ Rights.  Attorney appointed by the Court cannot waive minor’s right to apply for revocation of probate of will; nor can such attorney bind minor.  Devoe, James, E. of, 6.

 

Revocation of Probate.  Attorney appointed by Court to represent minors on probate of will, not entitled to institute proceeding for a revocation of will.  Cameto, Mercedes, E. of, 75.

 

Attorney’s Fees.

Disallowed Executor, where they appear to have been incurred by executor in his own behalf in litigating a conflict with the estate.  Stott, William, E. of, 168.

 

Doing Executor’s duties.  Services more particularly within the province of executor, rendered an estate, by an attorney, should be paid for by executor out of executor’s commission.  Ballentin, James. E. of, 86.

 

Executor as Legatees.  When it appears that services of attorneys were rendered to executor for their individual benefit as legatees, such services should not be paid for out of estate.  Chinmark, Moses, E. of, 128.

 

Previous Executor.  Attorney’s fees which were incurred by a previous executor are payable out of estate by the administrator, the attorney’s services having been  rendered to the estate.  Marvin, C. B., E. of, 168.

 

Autograph Will.

Executed by one who dies prior to adoption of Code.  When testator dies before passage of Act authorizing olographic will, such will ineffectual for any purpose.  McCloud, James, E. of, 23.

           

Bank Book

Husband and Wife.  Where account has been placed by the wife in joint names of herself and husband, it raises no presumption that she intended anything more than an authority to him to draw, revocable by her death.  Cunningham, Katie, E. of, 76.

 

Bequest.

Distribution.  Bequest to an extinct organization.  A similar association, organized for analogous purposes subsequently to the death of testator, cannot take a bequest conditioned, that if, at the date of the death of testator, a certain organization intended as beneficiary had ceased to exist, the fund should be otherwise appropriated, such intended beneficiary having ceased to exist at testator’s death.  Neil, Thomas, E. of, 79.

 

Legacy.  Demonstrative.  Where a special fund is set apart by will to pay demonstrative legacies, the Court will not endanger the means of their payment by directing the payment out of such fund, of a legacy that may, ultimately, be satisfied from another source.  Radovich, Luco, E. of, 118

 

Payable out of husband’s separate estate.  A bequest of the interest of $4,000 to wife until she re-marries, is a claim on husband’s separate estate to be calculated upon the period from his death to the re-marriage.  Stans, John H., E. of, 5.

 

Will.  Request to a religious corporation is void, under section 1275, Civil Code.  Wright, Mary, E. of, 213.

 

See Devisee:  Will.

Bond.

Value of Pledged property. How estimated.  In estimating the value of property, to arrive at amount of administrator’s bond, the value of pledged property in excess of the indebtedness thereby secured, should be taken as the value of the interest of estate therein.  Kidd, George W., E. of, 239.

 

Broker, Employment of.

Contract with.  Executor cannot contract with a broker to pay him, for his services in effecting a sale of real estate, all the property brings above a given sum, notwithstanding such net sum is a fair price for the property.  Ballentine, James, E. of, 86.

 

Brokerage.

Sale of Real Estate.  A charge for the services of a broker in effecting a sale of real estate belonging to an estate is allowable, subject to review by the Court.  Ballentine, James, E. of, 86.

 

Cancellation of single clause in Will.

Probate.  When the intent to cancel a single clause in a will be erasure on the part of testator, is clearly shown, the will should be proved without such clause.  Chinmark, Moses, E. of, 128.

 

Charge to Jury.

Will.  Mental incapacity arising from alcoholism.  Experts.  Opinions of.  Undue influence; fraudulent misrepresentation, etc.  Instruction to Jury.  Tittel, E. of, 12: Black, E. of, 24; Crittenden, E. of, 50; Low, E. of, 143; O’Keefe, E. of, 154.

 

See Jury:  Undue influence.

 

Charitable Purposes.

Devise.  A devise to trustees for charity is sufficiently definite as a subject of a trust.  Hinckley, Wm. C., E. of, 189.

 

Charitable or Benevolent Society.

Orphan Asylum.  The Boys’ Roman Catholic Asylum in San Rafael, is a charitable and benevolent society and, as such, entitled to take a legacy or devise.  Tobin, Richard, E. of, 134.

 

Chattel Mortgage.

Allowance to Widow.  This Court cannot take notice of a chattel mortgage upon furniture, which it is about to set over to the widow, as provision for the support of family.  It cannot entertain a proceeding looking to an indirect foreclosure of the mortgage in this Court.  Whatever rights the mortgagee may have must be enforced elsewhere.  Fleury, Jean. E. of, 227.

 

Chinaman.

Grant of Letters.  The Court prefers to nominate the Public Administrator, rather than a Chinaman whose permanent residence here is doubtful, in cases of administration with the will annexed.  Yee Yun, E. of, 181.

 

Citation.

Revocation of Probate.  Provided the petition for revocation be filed within the year, citation need not forthwith issue.  There may be a delay beyond the year.  Sbarboro, Giovanni, E. of, 255.

 

Claim.

Adverse to the Trust.  Executor has no right to make affidavit, as attorney in fact of a claimant to a claim which he, himself, must subsequently pass upon as executor.  Keenan, John C., E. of, 186.

 

Against deceased Executor’s Estate.  Held, to be absolute at his death.  The claim in such case must state, not only, that there are unsettled accounts of executor with the estate; but it must further show that there is a balance due from him, as executor; otherwise, distribution of his estate will not be delayed.  Halleck, Henry W., E. of, 46.

 

Against Estate of married woman.  A claim on mortgage given to secure husband’s indebtedness, held to be ground for ordering sale of real estate.  Marden, Mary J., E. of, 184.

 

Executor’s Claim.  Executor must present his individual claim against estate, within the period fixed by notice, to the Probate Judge, even when it has been allowed by a co-executor.  Keenan, John C., E. of, 186

 

Interest.  Insolvent Estate.  In a mortgage claim, the interest had been compounded in accordance with the terms of the mortgage.  The administratrix paid the claim in full, with interest as computed, without waiting for order of the Court in that behalf.  The estate proved to be insolvent; and the creditors ask that only interest at statutory rate be allowed.

HELD, that the administratrix is entitled to credit in her account for payment of interest at statutory rate; and that interest in excess of such rate must be disallowed, although the mortgage creditor might have recovered compound interest in foreclosure in District Court.  Titcomb, A. H., E. of, 55.

 

Interest on.  When allowable.  The allowance of a claim by administrator and Probate Judge is not such a proceeding as to make the claim rank as a judgment of the Court, and so become interest bearing.  The claim is not a judgment until it has passed through account and settlement and has been ordered paid.

It is doubtful if any claim bears interest, when the payment of interest could not be enforced against decedent, were he alive.  That is the true test.  Selby, Thomas H., E. of, 125.

 

Interest. Waiver of.  Interest on a claim is waived by a stipulation endorsed thereon foregoing any demand beyond a sum named.  Bleakley, Francis, E. of, 235.

 

Pledge.  Presentation not necessary to enable administrator to redeem property pledged as security for the debt, though in paying such claim administrator must take the risk that the pledge is worth the amount paid to redeem it.  Eidenmuller, George, E. of, 87.

 

Preferred.  A balance due from executor on an account settled, since which he has died, is not a judgment in the sense that would make it a preferred claim against his insolvent estate.  Kehoe, John, E. of, 127

 

Presentation of.  In action pending.  The action was pending, and verdict had in decedent’s lifetime; but no judgment entered until after his death, when the executors were substituted; appeal had; and final judgment to be paid in due course of administration, no claim having been presented.

HELD, that the objection should have been made in the District Court; that it comes too late after judgment.  Page, Thomas S., E. of, 61.

 

Res adjudicata.  Allwance.  Facts, showing that there had been no absolute adjudication upon a claim, which had not been approved by the Probate Judge at the date of the settlement of the first annual account, in which it was mentioned; and that action on it had been reserved at the subsequent hearing of petition for sale of real estate; the heirs, therefore, having a right to petition to be allowed to contest it.  Whitmore, H. M., E. of, 103.

 

Statute of Limitations.   The allowance of a claim stops the running of the statute.  Schroeder, H., E. of, 7.

 

See Administration:  MORTGAGE. 

 

Code, Civil, Sections Construed.

Meaning of Words.

14.    E. of Adsit, p. 266.

 

Validity of Marriage.

55-57.    E. of Beverson, p. 35; E. of Howe, p. 100; E. of Titcomb, p. 55; E. of Winters, p. 131.

 

Authentication of Marriage.

68.    E of Beverson, p. 35; E. of Titcomb, p. 55.

 

Dissolution of Marriage.

146.    E. of Cameto, Martin, p. 42.

 

Marriage:  Husband and Wife.

155.    E. of Meyer, p. 178; E. of Winters, p. 131.

158-159.  E. of Patton, P. 241.

162-164.  E. of Patton, p. 241; E. of Stans, p. 5; E. of Webb, p. 93.

174.    E. of Meyer, Marion, p. 178.

178-179.  E. of Patton, P. 241.

 

Parent and Child:  Birth and Adoption.

193-195.  E. of Sbarboro, p. 255.

197-198 .  of Austerhaudt, p. 18; E. of Linden, p. 215.

209.    E. of Mohlenhauer, p. 162.

213.    E. of Linden, p. 215

230.    E. of Sbarboro, p. 255.

 

Guardian and Ward.

246-251. E. of Austerhaudt, p. 18; E. of Linden, p. 215; E. of Barg, p. 69.

 

Owners---Aliens inheriting.

672.    E. of Broderick, p. 19.

 

Interests in property.

678-680}

688-680}

693-695}  E. of Selna, p. 233.

699       }

 

Transfer of property--Gifts.

1147.    E. of Cronan, p. 72.

 

Homesteads.

1237.    E. of Martin Cameto, p 42; E. of Reck, P. 59.

1263.    E. of Reck, p. 59.

 

Execution and Revocation of Wills.

1270-1272 . E. of Black, p. 24; E. of Brooks, p. 141; E. of Byrne, p. 1; E. of Crittenden, p. 50; E. of Hannigan, p. 135; E. of Low, p. 143; E. of O’Keefe, p. 154.

1275.    E. of Wright, p. 213; E. of Tobin, p. 134.

1276.    E. of Crittenden, p. 50; E. of Derry, p. 202; E. of Fusilier, p. 40; E. of McCullough, p. 76; E. of Taney, p. 210; E. of Winslow, p. 124.

 

Execution and Revocation of Wills – (CONTINUED.)

1276-7.   E. of Barker, p. 78; E. of Donoho, p. 140; E. of Johnson, p. 5.

1281.      E. of White, p. 157.

1287.      E. of Adsit, p. 266.

1292.      E. of Chinmark, p. 128.

1307.      E. of Wardell, p. 224.

1310.      E. of Pfuelb, p. 38.

1313.      E. of Hinckley, p. 189; E. of Tobin, p. 134.

 

Interpretation of wills.

1322-25. E. of Glass, p. 213; E. of Molk, p 212.

1329.      E. of  McDonniel, p. 94.

1331.      E. of  Pfuelb, p. 38.

1334.      E. of  McDonniel, p. 94.

1336-7.   E. of Crooks, p. 247.

1340.      E.  of Colette, p. 116.

1341.      E.  of Crooks, p. 247.

1345.      E.  of Cronin, John and Johanna, P. 252; E. of  Neil, p. 79.

 

General Provisions as to wills, Legacies, and Successions.

1357.      E.  of  Radovich, p. 118.

1366.      E.  of  Stans, p. 5.

1371.      E.  of  Colette,  p. 116.

1375.      E.  of. McCloud, p. 28.

1376.      E.  of  Baubichon, p. 55.

 

Succession.

1384.      E.  of  Selna, p. 233.

1386.      E.  of  Linehan, p. 83.

1387.      E.  of  Wardell, p. 224.

1387-8.   E.  of  Harrison, p. 121.

1402.      E.  of Mumford, p. 133; E. of Winters, p. 131.

1403.      E.  of Linehan. P. 83.

 

Deposit.

1818.      E.  of Galvin, p. 82

 

Loan of Money—Interest.

1912.      E.  of Galvin, p. 82.

1917-20. E. of  Selby, p. 125.

 

Trust----Obligations of Trustees.

2236-7.    E. of  Seligman, p.  ; E. of Stott, p. 168.

2259-62. E. of Lacoste, p. 67; E. of Post, p. 230; E. of Stott. P. 168.

 

Agency—Termination of.

2355.      E. of. Cunningham, Katies, p. 76.

 

Partnership—What constitutes.

2395.      E. of. Winters, p. 131.

 

 

Code of Civil Procedure.  Sections Construed.

Jurisdiction of the Probate Court

97.          E. of Dunn, p. 122.

 

Time of Commencing Actions—Limitations.

                        312-339. E. of  Galvin, p. 82.

                        356-363. E. of  Schroeder, p. 7.

 

Verdict—Referee’s Finding.

624-645    E. of  Patton, p. 241.

 

Proceedings Supplementary to Execution—Garnishment

717-18-19. E.  of   Sime, p. 100.

 

Appeals.

946.            E.  of  Cunningham, Mary, p. 214.

 

Costs of Court.

1033.          E.  of  Ricaud, p. 158.

 

Contempts.

1209.          E.  of  Taylor, p. 160.

 

Escheated Estates.

1269-72.    E.  of  Broderick, p. 19.

 

Jurisdiction of Probate Court-Proceedings.

1294.         E.  of  Austin, p. 237; E. of Milliken, p. 88; E. of Samuel, p. 228; E. of Tittel,                    p. 97.

 

Probate of Wills—Petition Notice, Proof.

1303-4.      E.  of  Cameto, Mercedes, p. 75; E. of Barels, p. 130.

1306.         E.  of  Bartels, p. 130.

1307.         E.  of  Devoe, p. 6.

1309.         E.  of  Barker, p. 78; E. of Donoho, p. 140; E. of Johnson, p. 5.

 

Contesting Probate of Wills.

1312-13-17.E.  of  Black, p. 24; E. of Brooks, p. 141; E. of Byrene, p. 1; E. of Collins, p. 73; E. of Crittenden, p. 50; E. of Hannigan, p. 135; E. of Low, p. 143; E. of Myers Margaret, p. 205; E. of Clarke, p. 259; E. of Tittle, p. 12.

 

Contesting Wills after Probate.

1327-1333.  E. of Adsit, p. 266; E. of Broderick, p. 19; E. of Cameto, Mercedes, p. 75; E. of Cunningham, Mary, p. 214; E. of Devoe, p. 6; E. of Sbarboro, p. 255; E. of Clarke, p. 259.

 

Letters Testamentary and of Administration, how and to whom issued.

1350.          E. of  Plaisance, p. 117.

1350-1.       E. of  Yee Yun, p. 181.

1365-69.     E. of Haskell, p. 204; E. of Keenan, p. 186; E. of Murphy, Mary, p. 185; E. of Nunan, p. 238; E. of Robie, p. 226; E. of Welch, p. 202; E. of Wyche, p. 85; E. of Cotter, p. 179.

 

Proceedings on Petition for Letters.

1371.    E. of Kidd, p. 239.

1378.    E. of Welch, p. 202.

1379.    E. of Yee Yun, p. 181; E. of Murphy, p. 185; E. of Wyche, p. 85.

 

Bond on Issuance of Letters.

1388.    E. of Kidd, p. 239.

 

Removal of Administrator.

1436-8.  E. of Doyle, p. 68.

 

Inventory and Appraisement.

1443.    E. of Loeven, p. 203.

 

Concealment of Property---Witness---Discovery.

1459.    E. of Imhause, p. 99.

 

Provision for Support of Family.

1465-1486.  E. of Ballentine, p. 86; E of Burns, p. 155; E. of Rondel, p. 70; E. of Fleury, p. 227; E. of Titcomb, p. 55.

1466-68.      E. of Byrne, p. 1.

 

Homestead.

1485.             E. of Ricaud, p. 158.

 

Claims against Estate.

1490-93.     E. of Bleakley, p. 235; E. of Dall, p. 159; E. of Eidenmuller, p, 87; E. of Halleck, p. 46; E. of Loeven, p. 203; E. of Marden, p. 184; E. of Whitmore, p. 103.

1494.    E. of Titcomb, p. 55.

1497.    E. of Selby, p. 125

1502.    E. of Page, p. 61.

1513.    E. of Eidenmuller, p. 87; E. of Phinney, p. 239.

 

Sale of Decedent’s Property.

1517.    E. of Ballentine, p. 86.

1522.    E. of Stow, p. 97.

 

Sale of Realty.

1536.    E. of Marden, p. 184.

1540.    E. of Schroeder, p. 7.

1544.    E. of Ballentine, p. 86.

1547.    E. of Osgood, p. 153.

1548.    E. of Ballentine, p. 86.

1553-4. E. of Ballentine, p. 86; E. of Osgood, P. 153.

1554. E. of Otis, p. 222.

1561.  E. of Delany, p. 9.

 

Powers and Duties of Executors and Administrators.

1581.    E. of Beideman, P. 66.

 

Compensation of Executors and Administrators.

1616-18.  E. of Ballentine, p. 86; E. of Beideman, P. 66. of Chinmark, p. 128; E. of Marvin, p. 163; E. of Reck, p. 59; E. of Stott, p. 168.

 

 

Code of Civil Procedure.  Sections Construed.

Accounting and Settlement.

1628. E. of Stow, p. 97.

1636. E. of Whitmore, p. 103.

1637. E. of Keenan, p. 186; E. of Kehoe, p. 127.

 

Payment of Debts.

1643.    E. of Keho, p. 127.

1647.    E. of Whitmore, p. 103.

1649.  E. of Selby, p. 125.

1650.  E. of Dall, p. 159; E. of Whitmore, p. 103.

1657.    E. of Whitmore, p. 103.

 

Partial Distribution.

1658.    E. of Ricaud, p. 158.

 

Final Distribution.

1665-66. E. of Crooks, p. 247; E. of Dunn, p. 122; E. of Hinckley, p. 189; E. of Patton, p. 241; E. of Sime, p. 100; E. of Sweigert, p. 152; E. of John and Johanna Cronin, p. 252.

1669.      E. of Broad, p. 188; E. of Mogan, p. 80.

 

Partition on Distribution.

1678.    E. of Hite, p. 232; E. of Hinckley, p. 189.

 

Attorney for Absent and Minor Heirs.

1718.    E. of Cameto, Mercedes, p. 75; E. of Devoe, p. 6.

1721.    E. of Taylor, p. 160.

 

Public Administrator.

1729-1737. E. of Walsh, p. 251.

 

Guardians of Minors.

1747.    E. of Tittel, p. 97.

1751-1755.1.1.1.                  E. of Austerhaudt, p. 18; E. of Linden, p. 215.

 

Guardians of Incompetent Persons.

1763.    E. of Fegan, p. 10; E. of Tittel, p. 97.

 

Powers and Duties of Guardians.

1771.    E. of Barg, p. 69.

1773-4.1.1.1.      E. of Secchi, p. 225.

 

Witnesses.

1880.    E. of Welch, p. 202.

1881.    E. of Low, p. 143.

 

Estoppel.

1908.    E. of Adsit, p. 266.

 

Proof of Writing.

1940.    E. of Barker, p. 78.

 

Presumptive Evidence.

1962.    E. of Keenan, p. 186; E. of Sbarboro, p. 255.

1963.    E. of Beverson, p. 35; E. of Garrity, p. 180; E. of Howe, p. 100.

 

Affidavits.

2010-11.  E. of Rice, p. 183.

 

 

Code, Penal.  Sections Construed.

Civil Death.

674.  E. of  Stott, p. 168.

 

            Code, Political.  Sections Construed.

Domicile—Residence.

52.  E.  of  Austin, p. 237; E. of Millilen, p. 88; E. of Samuel, p. 228; E. of Tittel, p. 97.

Conflicting Sections of Codes.

4484.  E.  of  Harrison, p. 121.

 

Codicil.

Subsequently Discovered.  Must be offered for probate within one year from date of probate of original will in like manner as if it were a revocation of such will, the proposing for probate of such codicil being in the nature of a contest of the original will.   Adsit, Elizabeth, e. of, 266.

 

Commissions.

Extra Allowance.  Administrator is entitled to extra allowance of commissions, when the administration has been particularly laborious.  Beideman, J. C.. E. of, 66

 

                        Homestead.  Executor cannot tax commissions on the homestead property.  Reck, Henry, E. of, 59

 

Net Proceeds.  In case of property undergoing partition in District Court, the administrator is to be allowed commissions, only on the net proceeds of partition sale coming to the estate.  Marvin, C. B., E. of, 163.

 

Successive Administrations.  In the case of successive administrations, full commissions are not allowable until final closing.  Marvin, C. B., E. of, 168.

 

Community Property.

Community Funds.  Expended upon the separate estate of either husband or wife do not make it common property, but any enhanced value from local causes accrues to the separate estate so improved; such expended funds, however, may be treated as a charge upon the separate estate in favor of community.  Patton, Charles, E. of, 241.

 

Insurance Policy.  Where premiums were paid by the husband out of his earnings, partly before, and, partly after his marriage, the proceeds of the policy must be deemed, part separate, and part community property in a ratio with premiums paid.  Webb, M. S., E. of, 93.

 

                        Insurance policy.  Bequest by husband to wife must be satisfied out of husband’s half.

An insurance policy, the premiums on which, were paid out of husband’s earnings, is community property.  A bequest of the interest on $4,000 to wife until she re-marries, is a claim on the husband’s separate estate, to be calculated from his death to re-marriage.  Stan, John H., E. of, 5.

 

Partial Distribution.  The widow is entitled to apply for her share of community property to be set over to her, though her title is that of survivor.  In that connection, heir includes widow as survivor.  Ricaud, J. P., E. of, 158.

 

Partnership, Man and woman living together as husband and wife, such status being impossible, he having an undivorced wife.

HELD, that such relations could not constitute a partnership and that the real wife was entitled to one-half community property.  Winters, J. W.,E. of, 131.

 

Widow’s share in Estate.  She takes as Survivor, not as heir.  “My estate,” in husband’s will, means estate subject to his testamentary disposition.  A renunciation of “all claim to my estate, except under this will,” is not a renunciation of widow’s share of community property.  Mumford, George H., E. of, 133.

 

See Husband and Wife.

 

Confirmation of Sale.

Under a Devise.  A sale made under a devise in trust to executors, with power of sale, does not require confirmation by the Probate Court.  The grantee under such sale may apply to the Court for distribution directly to himself.  Delany, Matthew, E. of, 9.

 

Constitution.

State of California.  (Old) Article XI, Section 16;  (New)  Article XX, Section 9.  As to Perpetuities.  Hinckley, E. of, 189.

 

Construction, Statutory.

See Codes:  Statutes: Statutes, U. S. at large.

 

Contempt.

Finding of.  Judgment of imprisonment of executor until he makes payment of the distributed shares of the estate.  Taylor, R. D., E. of, 160.

 

Contest

See Administration: Grant of Letters: Probate: Wills.

 

 

Contract.

Brokerage.  An executor cannot contract with a broker to pay him all he may obtain for a piece of property of the estate, above a given amount, not-withstanding such amount may be a fair price for the property.  Ballentine, James, E. of, 86.

 

Distribution.  Foreign law, unless made part of a contract affecting succession, must be disregarded in determining rights of inheritance.  Baubichon, J. B., E. of, 55.

 

Guardian and Ward.  An offer by a proposed guardian upon a contest for letters that he will, if appointed, maintain and educate the ward, is binding upon the guardian; and items in his account for maintenance of ward should be disallowed.  Barg, John C., E. of, 69

 

Lawful.  A contract between husband and wife affecting final disposition of their property, lawful.  Patton, Charles. E. of, 241.

 

                        Lawful.  Contract to cut timber on Public Lands, the title to which was in litigation.

HELD, to be a valid contract; and claim thereunder, allowable.

Contract Interpreted.  Whitmore, H. M., E. of, 108.

 

Cost Bill.

Filing.  A cost bill should be filed as in civil cases for costs paid to persons other than officers of the Court upon an application to set aside a homestead.  Ricaud, J. P., E. of, 158.

 

Costs.

Homestead.  On setting aside a homestead, appraisers, reporter, and interpreter should be paid out of the estate.  Ricaud, J. O., E. of, 158.

 

Counsel Fee.

See Attorney’s Fee.

 

Coverture.

Disability.  Coverture is no bar to the prescription of one year after probate, wherein to apply to revocation of probate.  Broderick, David C., E. of, 19.

 

                        See Husband and Wife.

 

Creditors.

Decree of Distribution.  Creditors, both resident and non-resident, are barred by decree of distribution.  Dall, William L., E. of, 159.

 

Witness.  A creditor can testify as to the fact of decedent’s indebtedness to him on hearing of application for letters.  Welch, John, E. of 202.

 

                        See Claim.

 

Custody of Funds of Estate.

Administrator entitled to custody of funds of estate:  May deposit them in bank to his credit.  Not chargeable with interest, unless it appears that he has used them for his own benefit.  Beideman, J. C., E. of, 67.

 

Loaning Funds.  Administrator liable if he parts with custody of funds for purposes other than their security.  Acoste, Jean, E. of, 67.

 

                        See Administration:  Administrator.

 

Custody of Person of Minor.

Direction as to custody of person of minor may be inserted in the order appointing father, guardian of minor.

An unsettled life and harsh disposition indicted as grounds for judicially restricting the father’s custody of minor child.  Linden, Irma, E. of, 215.

 

Divorce.   The father not being shown to be competent, and no objection being urged against the mother, the guardianship of girls, minor children of divorced parents, was given to the mother.   Austerhaudt, minors, G. of, 18.

 

                        See Guardianship.

 

Death.

Presumption as to.  Enquiries made at a place, from whence supposed deceased person was known to have emigrated;

HELD: not to be material evidence.  Garrity, Owen, E. of, 180.

 

Death before Distribution.

Distribution.  Where the devisee or heir has died pending administration, the estate of such decedent should first be administered and distributed, and the parties entitled under such decree of distribution may than apply for distribution to them of the share in the estate of the former decedent to which such deceased heir or devisee would have been entitled.  Cronin, John and Johanna, E. of, 252.

 

                        Will.  Devise to two beneficiaries and to the survivor in case either dies before distribution.

HELD, that survivor takes estate to exclusion of grantee of deceased beneficiary.  Cronin, John and Johanna, E. of, 252.

 

                        Debts:  See Claim.

 

Deceased Executor.

Claim against his Estate must show, not only that there are unsettled accounts between him and his trust; but, also, that there is a balance due from him; or distribution will not be delayed.  Halleck, Henry W., E. of, 46.

 

Decree.

Recitals in.  Such recitals showing that jurisdictional notice has been given, (where affidavits on file are defective but not antagonistic), can be attacked only by a showing that they are, in point of fact, untrue; and further, that the Court has been imposed upon.  Rice, John D., E. of, 183.

 

Defective Notice.

Proceedings to be Vacated.  On attention being drawn to the fact that a notice of probate is defective, the Court, of its own motion, should vacate subsequent proceedings.  Cameto, Mercedes, E. of, 75.

 

Delay in Administration.

Unreasonable Delay in Closing Estate.  Where administrator, after having collected funds of the estate, which can be distributed, for no good reason, delays filing his account and closing the estate, he may be held chargeable with interest.  Seligman, Louis, E. of, 8.

 

Delusion.

Will.  Charge to Jury.  Tittel, Frederica A., E. of, 12.

 

Demonstrative Legacy.

Funds to be kept intact.  Where a special fund has been set apart by will to pay demonstrative legacies, the Court will not endanger the means of payment, by directing the payment out of such fund, of a legacy that may, ultimately, be satisfied from another source.  Radovich, Luco, E. of, 118.

 

Devise.

Charitable or Benevolent Society.  The Boys’ Roman Catholic Orphan Asylum is a charitable and benevolent society; and, as such, entitled to take a bequest.  Tobin, Richard, E. of, 134.

 

Conditional Devise.  Executrix should pay taxes on property conditionally devised until condition has been complied with.  Broad, Charles, E. of, 188.

 

Devise to Executors of Real Estate for Purposes of Sale.  A sale under such devise does not require confirmation.  Grantee can have distribution directly to himself.  Delany, Matthew, E. of, 9.

 

Executorship.   A devise made, whereby the only trust created in that of executorship, and the distribution postponed for a given period.  Marvin, C. B., E. of, 163.

 

Future Contingent Interest vests in beneficiary, so as to be the subject of a succession.  Selna, Ubaldo, E. of, 233.

 

Issue.  To a person and “the issue of her body.”

HELD, that, it not being the clear intention of the testator to create an absolute fee estate in such first devisee, such words were not synonymous with “heirs.”  McDonniel, John, E. of, 94.

 

Jurisdiction to Interpret.  The Probate Court has jurisdiction to interpret a devise in trust; to pass upon its legality; to ascertain the parties entitled thereunder; and to distribute accordingly.  Hinckley, William C., E. of, 189.

 

Meaning of Word.  The word, devise, covers other estate than realty, notwithstanding its original, primary signification.  Pfuelb, Margaretha, E. of, 38.

 

Mortgage.  Devise of property subject, at death of testator, to a mortgage bearing interest.

HELD, that, under Section 1513, C. C. P., devisee was entitled to have mortgage paid out of the estate.  Phinney, Arthur, E. of, 239.

 

Perpetuity.  A devise in trust, coupled with power to alienate, is not a perpetuity.  Hinckley, William C., E. of, 189.

 

Precatory Language.  “To wife’s use and interest and those of children,” with power of disposition.

HELD, that wife takes full property.  Glass, Julius, E. of, 213.

 

Precatory Language.  “To my beloved wife, the whole of my property, for her own use and benefit, and to maintain and support my said children with, the same to be hers absolutely.”

HELD, to vest estate in wife, no trust being created thereby.  Molk, John H., E. of, 212.

 

 

 

Transcribed by Pat Seabolt & Sue Wood.

Proofread by Betty Vickroy.


© 2007-2008 Patricia Seabolt & Sue Wood.




 





SAN FRANCISCO'S CASES REPORTED INDEX