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PROBATE COURT

OF THE

CITY & COUNTY OF SAN FRANCISCO

 

I  N D  E  X.

 

 

Pages 291-310

 

Devise.

Residue after Settlement of Estate.  The beneficiaries entitled to residue under a devise to executors in trust, with power of sale, may, at their option, have such residue distributed to them in kind, or have a sale and division of proceeds.  Delany, Matthew, E. of, 9.

 

Specific:  Taxes and Assessments upon.  Executor should, pending administration, pay taxes and assessments on property specifically devised; and collect from devisee, at distribution; or if need be, he may then have an order of sale of the property to enable him to reimburse himself.   Mogan, A., E. of, 80.

 

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

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

 

Uncertainty in.  Charitable Devise.  There is no uncertainty in a devise, the mode of execution of which, is left to the “wisdom, faithfulness, and discretion” of the trustees; and the object of which is the “advancement of the cause of beneficence and charity.”  Hinckley, Wm. C., E. of, 189.

 

See Will.

 

Disability.

Coverture not a disability which would permit a woman to apply for revocation of probate after one year.  Broderick, David C., E. of, 19.

 

Discovery.

Witness.  Section 1459, C. C. P., held to apply only to transactions between witness and decedent in the lifetime of the latter.  Imhaus, Louis, E. of, 99.

 

Distribution.              

Assignee of deceased Heir is entitled to have assigned property distributed directly to him in satisfaction of his claim.

The Court cannot, however, distribute property to the holder of an assignment coupled with a defeasance; as that would be in the nature of a mortgage rather than a devesting of the legal title.  Hite, Ormsby, E. of, 232.

 

Assignee of one of two devisees under a devise providing that in the event of the death of either devisee before distribution the survivor should take, is not entitled to anything at the distribution, the assignor having died.  Cronin, John and Johanna, E. of, 252.

 

Bequest to an extinct organization.  A similar association, organized subsequently to the vesting of the legacy by the death of testator, cannot take a bequest conditioned, that if a certain organization has ceased to exist at the death of testator, the fund should be otherwise appropriated, it appearing that such original organization had ceased to exist before the testator’s death.  Neil, Thomas, E. of, 79.

 

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

 

Creditors.  A decree of distribution is conclusive on creditors, resident and non-resident.  Dall, William L., E. of, 159.

 

Death of Devisee or Heir pending Administration.  In such case, it is not proper to distribute the share of the deceased to his executor.  An executor or administrator is not a proper channel for the transmission of title.  The true course would be to settle and distribute the estate of the proposed deceased distribute, and armed with the decree, to apply for the share of such heir or devisee in the estate of the first decedent.  Cronin, John and Johanna, E. of, 252.

 

Delayed by Terms of Will.  A devise made whereby the only trust created is that of executorship, and the distribution is thereby delayed for an appointed time.  Marvin, C. B., E. of, 163.

 

Demonstrative Legacy.  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.

 

Executor cannot Retain a Lien after.  Balance on settlement of account in favor of executor, should be paid before distribution.  Executor can have no lien upon property after distribution, unless the parties, distributes, can and do consent thereto.  Sweigert, Adam, E. of, 152.

 

Foreign Law.  On distribution, foreign law, unless made part of a contract affecting succession, must be disregarded.  Baubichon, J. B., E. of, 55.

 

Homestead.  Separate Estate.  An unimproved lot, which had never been used as a residence, having been set apart to the widow, as a homestead, there being only non-resident brothers and sister, as heir, the other heirs applied to the Court to have the widow, as administratrix, include such real estate in her accounts; and to have the same distributed, claiming that the homestead order was a nullity; and that the property was separate estate.  Application denied.  Burns, Bernard, E. of, 155.

 

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

 

Lapsed Legacy.  A stepson is not such a relation as would, under Sec. 1310, C. C., prevent a legacy from lapsing.  Pfuelb, Margaretha, E. of, 38.

 

Marriage Contract.  When a marriage contract has been properly executed, the Probate Court has the right to consider it in determining manner of distributing estate.  A contract affecting final distribution of property of married persons, is lawful.  Patton, Charles, E. of 241.

 

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

 

Property Subject to a Mortgage.  All parties acquiescing, the Probate Court may distribute property subject to mortgage; provided the mortgage creditor is willing to forego any recourse for his debt upon the remainder of estate.  Hinclkey, William C., E. of, 189.

 

Refusal to pay over.  Judgment of imprisonment of executor for contempt, in failing to make the payment of distributive shares upon distribution.  Taylor. R. D., E. of, 160.

 

Title Distributed.  What title the Probate Court deals with.  When there is any color of title whatever in an estate, it is the duty of the Probate Court to distribute it.  It cannot try the title as between an estate and a stranger.  This is not in conflict with the duty of the Court to refrain from burthening its record with futile decrees of distribution when there is a clearly no estate to distribute.  Dann, John, E. of, 122.

 

Will.  Bequest to a religious corporation is void, under Section 1275, C. Code,  Wright, Mary E. of, 213.

 

Will.  Pretermitted Child.  An illegitimate child, who is not mentioned in her mother’s will, inherits as pretermitted.  Wardell, Ada, E. of, 224.

 

See Administration:  Will.

 

Divorce.

Contest as to Guardianship of minor children of divorced parents.  The mother appointed in preference to the father, as guardian of minor girls.  Austerhaudt, Minors, G. of, 18.

 

See Husband and Wife.

 

Domicile.

Intent.  A statement of facts tending to show the intent of party, from which the Court determines which of two places of sojourn is the jurisdictional residence.  Austin, Margaret, E. of, 237.

 

Intent.  A statement of facts tending to show that a claim of residence was made in good faith. Samuel, Michael J., E. of 228.

 

See Residence.

 

Erasure in Will.

Cancellation of single clause by erasure.  Where the purpose of the testator to so cancel, is clear, the will should be proved without such clause.  Chinmark, Moses, E. of, 128.

 

Escheat.

Alien Non-residents.  By reason of being a non-resident alien, after ten years, a party claiming as heir, loses all right to ask to revocation of probate, any interest which such alien might theretofore have possessed in the estate, having escheated.  Broderick, David C., E. of, 19.

 

Estoppel.

Account.  Funds treated as a cash item.  The administrator is estopped from afterwards showing that they were loaned out.  Lacoste, Jean, E. of, 67.

 

Guardian and Ward.  When on a contest for the guardianship, the person thereon appointed, as an inducement to the Court to prefer him, offered to maintain the minor at his own cost, which offer was embodied in the order of appointment, such guardian is bound by his offer; and any items in his accounts with ward for maintenance cannot be allowed.  Barg, John C., E. of, 69.

 

Evidence.

Examination of Witness.  Section 1459, C. C. P., held to apply only to matters occurring in lifetime of decedent.  Imhaus, Louis, E. of, 99.

 

Husband and Wife.  Wife cannot be questioned as to conversations between herself and husband upon any subject whatever.  Such disability, as a witness, is not removed by death of husband.  Low, C. L., E. of, 143.

 

Marriage.  Meretricious cohabitation, with or without promise of future marriage, does not constitute marriage.  Beverson, Claus, E. of, 35.

 

Marriage.  Meretricious relations raise no presumption of marriage, even where parties, for temporary purposes, have held themselves out as husband and wife, Howe, George L., E. of, 100.

 

Presumption of death.  Enquiries made at a place, from whence supposed deceased party was known to have emigrated, not material evidence.  Garrity, Owen, E. of , 180.

 

Presumption of Gift.  There is no presumption that the wife intended to make a gift to him of her moneys in bank, arising by reason of her instruction to the bank to place her account in the joint names of herself and husband.  Such action merely constitutes an authority to him to draw, revoked by her death.  Cunningham, Kate, E. of, 76.

 

Privileged Communications Husband and Wife.  Neither party can be examined as to their conversations with each other, even after the death of the other.  Low, C. L., E. of, 143.

 

Will.  Proof Extrinsic to a Will may be introduced to show who is meant to be nominated as executor, when the testator has been inaccurate in designating him by his style as officer of one of the subordinate assemblies of a secret benevolent order; and, the person so shown to be intended, will be granted letters.  Colette, O. A. P., E. of, 116.

 

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

 

See Distribution:  Will.

 

Executor.

Appointment of.  When it can be fairly ascertained who is meant by testator in a testamentary nomination of executor, the fact that he has been inaccurate in styling the nominee, who was officer of a secret organization, will not be regarded.  Colette, O. A. P., E. of, 116

 

Attorney’s Fee.  Where attorney performs services which should properly devolve on executor, they should be paid for by executor out of executor’s commissions.  Ballentine, James, E. of, 86.

 

Attorney’s Fee Disallowed, 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.

 

Balance in his favor.   Executor can have no lien for balance in his favor on settlement of account after distribution.  Sweigert, Adam, E. of, 152.

 

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

 

Executor Garnisheed for share or interest of heir in the estate.  Executor is not subject to garnishment for the share of an heir who has been sued for debt; nor can the heir’s interest be reached in that manner before distribution.  Sime, John, E. of, 100.

 

Grant of Letters.  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.

 

Grounds for opening account, by minor who has come of age:

1.      That executor made affidavit, as attorney in fact of claimant, to a claim; and, thereafter allowed and paid the claim.

2.      That executor procured his individual claim to be allowed by his co-executor and approved by Judge, but not by the latter until time for presentation had expired.  Keenan, John C., E. of, 186

 

Interest.  Annual rests.  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.

 

Judgment of imprisonment of executor, for failing to make payment of the distributed share of the estate.  Taylor, R. D., E. of, 160.

 

Non-resident.  A non-resident executor has no standing in court which would entitle him to nominate an administrator.  Murphy, Mar, E. of, 185.

 

See Administration.

 

Expenses of Administration.

Attorney’s Fees, for services rendered for the estate at the instance of the executor, are payable out of its funds by an administrator, who succeeds to trust.  Marvin, C. B., E. of, 163.

 

Common and Separate Estate.  Expenses of administration are to be assessed proportionately upon common and separate property of decedent.  Patton, Charles, E. of, 241.

 

See Administration.

 

Experts.

Will.  Mental incapacity arising from alcoholism.  Instruction to Jury.  O”Keefe, E. of, 154.

 

Family Allowance.

Mortgage on Household Furniture.  In setting apart property for the use of the family, this Court can take no notice of a chattel mortgage upon the furniture set apart.  Whatever rights the mortgage, creditor may have must be enforced elsewhere.  Fleury, Jean. E. of. 227.

 

Widow.  A wife separated from her husband under circumstances which would preclude her from the right, in her lifetime, to call on him for support, is not entitled to a widow’s allowance, she being in no sense, a member of his family.  Byrne, H. H., E. of, 1.

 

See Widow.

 

Federal Laws,

See Statutes U. S. at large.

 

Filing.

What is filing?  Where a petition is handed to the Judge, it is to be deemed a filing, though it may not be placed in the Clerk’s hands until afterwards.  Sbarboro, Giovanni, E. of, 255.

 

Foreclosure.

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 must be by foreclosure.  Rondel, E. F., E. of, 70.

 

Foreign Funds.

Distribution.  Unless made part of a contract affecting succession, the foreign law is to be disregarded.  Baubichon, J. B., E. of, 55.

 

Foreign Tribunal.

Presumption of transfer of funds.  In case of funds received here by guardian from a foreign country, it will be presumed, without positive showing to the contrary, that they were ordered transferred by the foreign tribunal, to be administered at the common domicile of guardian and ward.  Secchi, Minors, E. and G. of, 225.

 

Future Contingent Interest.

Devise.  A future contingent interest vests in the beneficiary so as to be the subject of a succession.  Selna, Ubaldo, E. of, 233.

 

Garnishment.

Executor served with Garnishment Process.  The executor is not subject to garnishment process, for the share of the heir, who has been sued for a debt; nor can the heir’s interest in the estate be reached by garnishment before distribution.  Sime, John, E. of, 100.

 

Gift by Wife to Husband.

Bank Book.  The fact that wife joined her husband’s name to hers in her savings bank account, raises no presumption that she intended to give him the deposit.  Such a transaction was merely an authority to him to draw, revoked by her death.  Cunningham, Katie, E. of, 76.

 

Gift inter vivos.

Order for Sum of Money.  Delivery of a deed for real estate and also an order to receive the consideration price held to be valid as a gift inter vivos, though the deed was not handed to the grantee, nor the money paid until after death of donor.  Cronan, Thomas, E. of, 72.

 

Grant of Letters.

Executor.  Incompetence of person named in 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.

 

Guardianship.  A guardian who, in a contest for letters, offers that, in the event of letters being issued to him, he will maintain and educate the ward, and such offer is embodied in the order for issuance of the letters, is bound thereby; and cannot, on settlement of his account, be credited with items of expense of maintenance.  Barg, John C., E. of, 69

 

Jurisdiction.  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 must be disregarded.  Samuel, Michael J., E. of, 228.

 

No Estate.  Letters will not be issued, where it appears that the object of them, there being no actual estate, is to clothe some one with the trust for the purpose of making him defendant in an action to quiet title.  Murray, F. X., E. of, 208.

 

Nominee of Grandmother.  As against a creditor, under the law in force (March, 1875) the Court has a discretionary right to appoint the nominee of the grandmother of an unmarried minor as administrator.  Wyche, Mary, E. of, 85.

 

Nominee of Non-resident widow, entitled to letters over, Public Administrator.  Cotter, Henry B., E. of, 179; Robie, A. H., E. of, 226.

 

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

 

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

 

Grant of Letters.

Res adjudicata.  What is thereby adjudicated.  Unless there has been some contest on the point to work an estoppel, the heir is not, thereby, precluded from questioning, at a subsequent time, the right of the administrator to share in the estate, as heir, in the character of husband, or to be paid a claim, in the character of creditor.  Haskell, Eliza, E. of, 204.

 

Revocation.  Residence, as a jurisdictional requirement, may be enquired into at any time by a direct proceeding for revocation of letters.  Milliken, T. J., E. of, 88.

 

Seaman’s Estate.  U. S. Shipping Commissioner has no right growing out of his office to letters of administration upon the effects, on shore, of a seaman decedent on a voyage to this port.  The Act of Congress creating his office gives the Commissioner a right to those effects of the sailor on shipboard.  Bedford, John, E. of, 60.

 

With Will annexed.  The Court prefers to appoint Public Administrator rather than a Chinaman.  Yee Yun, E. of, 181.

 

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

 

See Administration:  Jurisdiction.

 

Grounds for Re-opening Account.

Minor, now of age, obtains settlement of account to be re-opened, for the reasons:

I.                    That executor made affidavit, as attorney in fact of a claimant, to a claim, which he thereafter allowed, as executor, and paid out of the estate.

II.         That he procured the allowance of his individual claim by his co-executor and the approval thereof by the Judge after the time for presentation of claims had elapsed.  Keenan, John C., E. of, 186.

 

Grounds of Opposition.

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

 

Guardianship.

Distribution.  Guardian of minor ward cannot consent to distribution to ward of estate subject to lien of executor for balance due him on settlement of account.  Sweigert, Adam, E. of, 152.

 

Divorce.  Minors, children of divorced parents.  The father not appearing competent, and no good reason appearing why the mother should not be guardian, letters should issue to her as guardian of minor girls.  Austerhaudt, Minors, G. of, 18.

 

Estopped from charging minor’s estate with the expenses of minor’s maintenance and education, when, as an inducement for the issuance of letters to him, he offered in Court to assume such expenses himself; and his offer was embodied in the order directing letters to issue to him.  Barg, John C., E. of, 69.

 

Father of Minor.  The father is entitled, (the mother being dead), to the guardianship of minor; subject, however, to such direction, as to the personal custody of the child, (which may be incorporated in order), as may be for the child’s best interests.

Grounds for restriction:  An unsettled life and harsh disposition, as grounds for restriction of father’s custody of the child.  Linden, Irma, E. and G. of, 215.

 

Foreign Funds.  Moneys received by a guardian from a foreign country must be accounted for here, unless there is a positive showing that guardian has accounted for them before foreign tribunal, the presumption in the case being that the foreign court has permitted their transfer, to be administered at the domicile of guardian and ward.  Secchi, Minors, E. and G. of, 225.

 

Investment of Funds.  When a guardian deposits funds in a bank for safe keeping, he is responsible for loss only when he has placed them in a bank known to be unsafe.  Where, however, a guardian loans funds imprudently and without security, it is his duty to assume the loss.  Post, Cornelia M., Minor, E. and G. of, 230.

 

Jurisdiction.  Residence.  Application for letters of guardianship to be made in county where proposed ward resides.  Tittel, E. A. G. C., E. and G. of, 97

 

Step-child.  When a guardian marries his ward’s mother, the step-father, mother, and ward each having estate, the maintenance of the ward should be charge upon all three.  Mohlenhauer, Maria, G. of, 162.

 

See Account:  Administration.

 

Guardianship of Insane Person.

Wife.  Husband’s application for guardianship of his insane wife denied, when it appears that there is a selfish motive for his seeking it; and it is doubtful if the welfare of the ward will be thereby subserved.  Fegan, Eliza, E. and G. of, 10.

 

Habitual Intemperance.

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

 

See Alcoholism.

 

Heir.

Death of Heir or Devisee Pending Distribution.  The estate of such heir should first be administered and his interest in the estate of first decedent distributed; and the parties entitled under such distribution can then apply for the share in the estate of such first decedent to be set over to them.  Cronin, John and Johanna, E. of, 252.

 

Garnishment of Executor in suit against the Heir.  The executor cannot be subject to garnishment for share of an heir before distribution.  Sime, Jon, E. of, 100.

 

Widow.  Surviving wife is heir to the exclusion of nephews or nieces of decedent, when he dies leaving no issue, father, mother, brother, or sister him surviving.  Linehan, Patrick, E. of, 83.

 

Widow.  In applying for partial distribution, the widow, as survivor of community, ranks as heir.  Ricaud, J. P., E. of, 158.

 

Homestead.

Costs.  On setting aside homestead, appraisers, reporter, and interpreter, the costs should be paid out of the estate.  Ricaud. J. P., E. of, 158.

 

Exceeding Statutory Value.  Widow.  When the widow, who is also administratrix, occupies, for a period after the return of the inventory, a homestead of a value greater than $5,000, she should, in her accounts, be charged with rent therefore proportionally with the excess in value of the premises over the statutory amount.  Titcomb, A. H., E. of, 55.

 

Jurisdiction Lost by Allotting it.  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 must be by foreclosure in District Court.  Rondel, E. F., E. of, 70.

 

Partially used for other purposes.  Property in part used for purposes other than a homestead, but included in declaration, cannot be set apart by decree.  Reck, Henry, E. of, 59.

 

Premises not exclusively used as.  Residence on lot held under a tenancy in common with strangers.  Residence should be the principal use of the premises.  Homestead Act of 1862 dispensed with the necessity of a written abandonment.  Faithless wife, who was not, at the death of husband, a member of his family, not entitled to a homestead.  Cameto, Martin, E. of, 42.

 

Widow, (there being no minor children), is entitled to have a homestead set apart to her by Probate Court.  Ballentine, James, E. of, 86

 

Widow, sole member of family.  Unimproved lot, never used as a residence, allotted as homestead to a widow, there being no children.  Motion to vacate order made six months afterwards by non-resident heir, on the ground of want of notice, was denied.  Burns, Bernard, E. of, 155.

 

See Mortgage.

 

Husband and Wife.

Community Property, Bequest.  An insurance policy, the premiums on which were payable 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 the re-marriage.  Stans, John H., E. of, 5.

 

Dealings between man and woman as Husband and Wife, such relationship being actually impossible, the man having a wife already;

HELD: not to constitute a partnership.  First wife entitled to half of community property.  Winters, J. W., E. of, 143.

 

Evidence.  Wife cannot be questioned as to conversations between herself and husband upon any subject whatever.  Such disability is not removed by the death of husband.  Low, C. L., E. of, 143.

 

Guardianship of Insane Wife.  Where it appears that the husband has selfish motives in seeking to be the guardian of his insane wife; and it is doubtful if her welfare will be subserved by appointing him, the Court will deny the application.  Fegan, Eliza, E. and G. of, 10.

 

Guardianship of Minor Children of Divorced Parents.  The father not being competent, and there being no objection to the mother, letters were issued to her as guardian of minor girls.  Austerhaudt, Minors, G. of, 18.

 

Homestead.  Faithless wife, not a member of decedent’s family at his death not entitled to claim a homestead out of his estate.  Cameto, Martin, E. of, 42.

 

Marriage.  Facts showing actual marriage, though no formal ceremony.  Titcomb, A. H., E. of, 55.

 

Marriage Contract.  Acknowledgment is essential to the execution of a marriage contract.  A contract signed before marriage, but not acknowledged until eight years thereafter;

HELD, to be a nullity.  (Hittell’s General Laws, Vol. 1, Sec. 3576.)  Where such contract is properly executed, the Probate Court has the right to consider it in determining manner of distributing estate.  Patton, Charles, E. of, 241.

 

Presumption of Gift of Moneys in Bank.  HELD, that joining husband’s name with her own in her account at a savings bank, was merely an authority to him to draw funds, and was revoked by her death.  Cunningham, Kate, E. of, 76.

 

Residence of wife the same as the husband’s, in determining the question for the purposes of jurisdiction of wife’s estate.  Austin, Margaret, E. of, 237.

 

Separate Real Estate.  Expenditures thereon.  Real property owned  by either, before marriage, continues to be separate estate, notwithstanding the fact that community funds have been expended thereon, and may have enhanced its value, but such funds so expended may constitute a claim against the separate property in favor of the community.  Patton, Charles, E. of, 241.

 

Support of Insane Wife.   Husband is liable out of his own estate, when able to respond, for the support of  his insane wife, notwithstanding the fact that she is possessed of ample separate estate.  Meyer, Marion, E. and G. of, 178.

 

Wife of Life Convict, a widow.  A convict, under a sentence for life, is civilly dead.  His wife, in such case, is a widow and entitled to take as legatee or devisee, where her widowhood is a condition for vesting the legacy or devise.  Stott, William, E. of, 168.

 

See Marriage.

 

Illegitimacy.

Presumption of.  The spurious 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.  Sharboro, Giovanni, E. of, 255.

 

Succession.  Illegitimate half brother by the father’s side cannot be an heir.  Illegitimate half sisters by the mother’s side, inherit.

Conflict between Sec. 1387 and 1388, 1388 prevailing in accordance with Sec. 4484.  Political Code.  Harrison, W. B., E. of, 121.

 

Imprisonment.

Judgment of, for contempt, against executor, for failing to pay over distributed shares of the estate.  Taylor, R. D., E. of, 160.

 

Incompetent Person.

Guardianship.  Residence.  Application should be made in the county where proposed ward resides.  Tittel, E. A. G. C., E. and G. of, 97.

 

Insane Wife. 

Guardianship of Insane Wife.  Where it appears that the husband has selfish motives in seeking to be the guardian of insane wife, and it is doubtful if her welfare will be secured by his appointment, the court will not entertain his petition.  Fegan, Eliza, E. and G. of, 10.

 

Support of.  Husband liable for support of insane wife, notwithstanding the fact that she has ample means of her own, provided he be able to respond.  Meyer, Marion, E. and G. of, 178.

 

Insolvent’s Debt.

Executor.  It is not the duty of the executor to pursue an insolvent debtor at the estate’s expense, unless he has reason to believe that something may be recovered.  Stow, J. W., E. of, 97.

 

Insolvent Estate.

Deceased Executor.  A balance due from a deceased executor on settlement of his account is not a preferred claim against his insolvent estate.  Kehoe, John, E. of, 127.

 

Insurance Policy.

Community Property, when premiums paid out of husband’s earnings.  A bequest of interest on $4,000 to wife until she re-marries, a claim on the husband’s separate estate, to be calculated from his death to the remarriage.  Stans, John H., E. of, 5.

 

Insurance Policy.

Community Property.  Premiums paid out of husband’s earnings partly before and partly after marriage.

HELD, that policy was proportionally separate and common property.  Webb, M. S. E. of, 93.

 

Intent.

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 must be disregarded.  Samuel, Michael J., E. of, 228.

 

See Residence.

 

Interest.

Administrator Chargeable with Interest for Unreasonable Delay.  Where administrator, after having collected funds of the estate, which can be distributed, delays, for no good reason, to file his account and close estate, he may be chargeable with interest.  Seligman, Louis, E. of, 8.

 

Administrator is Entitled to Custody of Funds.  He may deposit them in a bank to his credit; and he will not be chargeable with interest, unless it appears that he has used them for his own benefit.  Beideman, J. C., E. of, 66.

 

Annual rests.  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.

 

Claim against Insolvent Estate.  Interest allowed only at the statutory rate upon a mortgage claim, notwithstanding the fact that the mortgage stipulated for compound interest in case of default in payment; and the administratrix, who had paid the full claim in anticipation of the order of the court for payment of debts, was not allowed her payment of any excess over the statutory rate of ten per cent.  Titcomb, A. H., E. of, 55.

 

Interest on Claim.  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, 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, if he were alive.  That is the true test.  Selby, Thomas H., E. of, 125.

 

Keeping Funds in his own name.  The administrator of an estate may deposit funds of estate in his own name at bank; and unless it fairly appears that he has used them for his own benefit, he will not be chargeable with interest.  Beideman, J. C., E. of, 66.

 

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

 

Interpretation of Bequest.

Bequest, “to those of the above mentioned children who have attained the age of twenty-one years.” Held to apply only to those of such age at the death of testator, thus excluding those below that age.  Crooks, Matthew, E. of, 247.

 

See Devise:  Will.

 

Inventory.

Failure to File.  Letters revoked for failure to file inventory, etc.  Walsh, John, E. of, 251.

 

Notice to Creditors.  The inventory must be the guide in determining whether there has been sufficient notice to creditors.  If inventory shows property in excess of $10,000, a four months’ notice is a nullity.  And the executor cannot show that property set forth in such inventory is not property of the estate.  Loeven, Emil, E. of, 203.

 

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

 

Investment of Funds.

Guardianship.  When a guardian deposits funds in a bank for safe keeping, he is responsible for loss only when he has placed them in a bank known to be unsafe.  Where, however, a guardian loans funds imprudently and without security, it is his duty to assume the loss.  Post, Cornelia M., minor, E. and G. of, 230.

 

Issue of her body.

Devise.  As applied to first beneficiary, the phrase, “issue of her body,” creates a fee in her only, where such is the clear intention of testator.  “Issue,” not synonymous with “heirs,” within the rule of Norris v. Hensley, 27 Cal., 439.  McDonniel, John E., E. of, 94.

 

Judgment.

Claim when it becomes a Judgment.  The allowance of a claim by executor and Probate Judge is not such a proceeding as will make the claim the judgment of a court, and thereby become interest bearing.  The claim is not a judgment until it has passed through account and settlement, and has been ordered paid.  It is further doubtful if any claim bears interest, when the payment of interest could not be enforced against decedent, if he were alive.  Selby, Thomas H., E. of, 125.

 

Preferred Claim.  A balance found due from an executor on settlement of account is not a judgment in the sense that would make it a preferred claim against his estate, which is insolvent.  Such settlement is merely a finding that there is so much money in his hands, subject to administration.  Kehoe, John, E. of, 127.

 

Presentation of Claim.  The action was pending and verdict had in decedent’s lifetime; but no judgment had until after his death, when the executors were substituted; appeal had; and final judgment payable 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.

    

Jurisdiction.

Appearance of Minors in open Court on the day of hearing.  Such appearance cannot remedy the defect of want of service by mail or personal service of the notice of the hearing on probate of will; and the Court has no jurisdiction to proceed with the hearing.  The proper way to remedy the defect of want of notice is to vacate all proceedings subsequent to the petition for probate, and proceed de novo to publish notice and serve minors in the statutory way.  Bartels, Conrad, E. of, 130.

 

Defective Notice.  On attention being called to the fact that a notice of probate is defective, the Court should, of its own motion, vacate all subsequent proceedings.  Cameto, Mercedes, E. of, 75.

 

Devise, Interpretation of.  The Probate Court has the power to construe the language of a will so as to ascertain the distributees.  Crooks, Matthew, E. of, 247.

 

Devise, Interpretation of.  Probate Court has equitable jurisdiction to interpret a devise in trust; the parties entitled; and to distribute accordingly.  Hinckley, William C., E. of, 189.

 

Guardianship.  Residence.  Application should be made in the county where proposed ward resides.  Tittel, E. A. G. C., E. of, 97.

 

Homestead set aside by Decree.  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 must be by foreclosure in District Court.  Rendel, E. F., E, of, 70

 

Mortgage.  The Probate Court has no jurisdiction to entertain an application by a lien-holder to enforce his lien upon chattels which it is the duty of the Court to allot to the widow as a provision for her support.  The Court must set over the effects to the widow, and leave the mortgage creditor to seek elsewhere the enforcement of his claim.  Fleury, Jean, E. of, 227.

 

No Estate.  There must, actually, be estate to administer.  Where the real object of the application for administration, is merely to clothe a person with the trust, so as to make him defendant in an action to quiet title, the petition will be denied.  Murray, F. X., E. of, 208.

 

Recitals in Decree showing.  Such recitals in decree showing that jurisdictional notice has been given (when 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

 

Residence as a Jurisdictional Requirement.  May be enquired into at any time by direct proceeding for revocation of letters.  Facts showing residence.  Milliken, T. J., E. of 88.

 

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 specious purpose, it must be disregarded.  Samuel, Michael J., E. of, 228.

 

Residence of Wife.  Wife’s residence must be held to be the same as the husband’s.  Austin, Margaret, E. of, 237.

 

Trying Title.  Probate Court, cannot try title as between an estate and a stranger.  If there is a color of title in the estate to property, it is the duty of the Court to distribute it, though it may, at the same time, be the duty of the Court to decline to burthen its records with decrees professing to distribute estate, when there is clearly none to distribute.  Dunn, John, E. of, 122.

 

Sale of Share of deceased Heir.  The Court not having acquired jurisdiction of the heir’s estate, it has no authority to order a sale of distributive share of such heir held by a creditor as security for an indebtedness of heir.  Hite, Ormsby, E. of, 232.

 

Jury.

Charge to.  Contest of Probate.  Black, James, E. of, 24; Crittenden, Howard, E. of, 50; Low, C. L., E. of, 143; Tittel, Frederica A., E. of, 12; O’Keefe, E. of, 154.

 

Removal of Administrator.  Administrator not entitled to a jury on the trial of the issue joined on application for his removal.  Doyle, Ellen, E. of, 68.

 

Verdict.  The verdict of a jury on a contested probate stands on the same basis with a finding by a Judge, in so far as the right to apply for a revocation is concerned.  Cunningham, Mary, E. of, 214.

 

See Will:  Undue Influence.

 

Lapsed Legacy.

Relation.  A step-son is not such a relation, as would, under Section 1310, C. C., prevent a legacy from lapsing.  Pfuelb, Margaretha, E. of, 38.

 

Legitimacy.

Conclusive Presumption of Legitimacy from uninterrupted intercourse of husband and wife, notwithstanding a claim advanced by mother, that the child is the spurious offspring of decedent and herself, and therefore, heir of decedent’s estate.  Sbarboro, Giovanni, E. of, 255.

 

See Illegitimacy.

 

Letters of Administration.

No Estate.  The real object of the application for letters being to clothe a person with the trust, so as to make him a defendant in an action to quiet title, there being no actual estate.  The petition will be denied.  Murray, F. X., E. of, 208.

 

See Administration:  Grant of Letters.

 

Life Convict.

Wife, a widow.  A convict under a sentence for life imprisonment, is civilly dead.  His wife, in such case, is a widow, and entitled to take as legatee or devisee, where her widowhood is a condition for vesting a legacy or devise.  Stott, William, E. of, 168.

 

Limitation upon Charitable Devises.

One-third of Gross Value of Estate.  The one-third intended in Section 1313, C. C., as the limit of power of testator to dispose of his property for charitable purposes, is one-third of the gross value of his estate, (not net value, after deducting debts).  Hinckley, William C., E. of, 189.

 

See Devise:  Will.

 

Loan.

Not a Deposit.  Facts showing a transaction to be one of loan, and not deposit.  A verbal contract to pay on demand:  Statute of Limitations runs from date of loan.  Galvin, John, E. of, 82.

 

Loaning Funds of an Estate.

Administrator liable, if he parts with the custody of the funds of the estate for any purpose, other than their security.  Lacoste, Jean, E. of, 67.

 

See Administration.

 

Marriage.

Community Property.  Notwithstanding the fact that community funds have been expended upon real estate, which was acquired before marriage, the property continues to be separate estate; but such expenditure may constitute a claim in favor of the community and against the separate estate.  Patton, Charles, E. of, 241.

 

Evidence of.  Meretricious Cohabitation, with or without promise of future marriage, does not constitute a marriage.  Beverson, Claus, E. of, 35.

 

Evidence of.  Meretricious relations, even where parties have, at times, for temporary purposes, held themselves out as husband and wife, raise no presumption of marriage.  Howe, George L., E. of, 100.

 

No Formal Ceremony.  Facts showing a marriage, though no formal ceremony.  Titcomb, A. H., E. of, 55.

 

See Husband and Wife.

 

Marriage Contract.

Acknowledgment essential.  An acknowledgment is part of the execution of a marriage contract.  If not acknowledged, the instrument is a nullity.  (Hittell’s General Laws, Vol. I, Sec. 3576).  Patton, Charles E. of, 241.

 

Distribution.  When it is properly executed, the Probate Court has the right to consider a marriage contract in determining manner of distributing estate.  Patton, Charles, E. of, 241.

 

Married Woman.

Mortgage.  Claim against her estate on mortgage given to secure husband’s note.  Held, to be ground for order of sale.  Marden, Mary J., E. of, 184

 

No Disability.  Marriage is no disability as to the probate of will.  Broderick, David C., E. of, 13.

 

Mental Incapacity.

Alcoholism.  Will.  When there has been mental incapacity arising from alcoholism proved, it is unnecessary to enquire further whether any person has used undue influence in procuring the execution of the will.  Hannigan, Hepsabeth, E. of, 135

 

Alcoholism.  Will.  Mental incapacity arising from alcoholism.  Opinions of experts as to condition of testator’s mind.  Instructions to jury.  O’Keefe, E. of, 154.

 

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

 

Opium Habit.  Will.  Incapacity arising from the opium habit.  Undue influence.  Charge to jury.  Crittenden, Howard, E. of, 50.

 

Pleading.  Mental incapacity is, in itself, a fact, and a petition for revocation of probate, in which such fact is alleged is pro tanto good on demurrer.  Clarke, Margaret T., E. of, 259.

 

See Charge to Jury.

 

Meretricious Relations.

Marriage.  Such relations, with or without promise of future marriage, do not constitute marriage.  Beverson, Claus, E. of, 35.

 

Marriage.  Meretricious relations raise no presumption of marriage, even where parties, for temporary purposes, have held themselves out as husband and wife.  Howe, Geo. L., E. of, 100.

 

Minor.

Guardian liable for Ward’s Maintenance, When, on a contest for the guardianship, he offered to undertake at his own cost, the ward’s maintenance; and such offer was embodied in the order of appointment.  Barg, John C., E. of, 69.

 

See Guardianship

 

Minor Heirs.

Attorney appointed by the Court cannot waive minor’s right to ask for revocation of will, or in any way, bind minor.  Devoe, James, E. of, 6.

 

Probate of Will.  The appearance of minor heirs in open Court on the day of the hearing is of no avail to cure want of notice to them by mailing or personal service.  The proper course in case of such failure to give notice, is to vacate the proceedings under the petition, and publish notice and mail or serve personally, as required by the statute.  A mere continuance for the purpose of serving minors is useless.  Bartels, Conrad, E. of, 130.

 

Misrepresentation.

Fraudulent.  Will.  Charge to Jury.  Black, James, E. of, 24;  Tittel, Frederica A., E. of, 12.

 

See Charge to Jury.

 

Mortgage.

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

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

 

Distribution, subject to.  Where mortgage creditor is willing to release the remainder of the estate, and the devisees desire it, the court may distribute realty, subject to a mortgage.  Hinckley, William C., E. of, 189.

 

Given by married woman to secure her husband’s indebtedness, held to be good ground for order of sale of her separate estate.  Marden, Mary J., E. of, 184

 

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 must be by foreclosure.  Rondel, E. F., E. of, 70.

 

Purchase by Trustee of Claim against Trust Estate.  There is nothing adverse to the trust in the act of a trustee under a devise in trust purchasing a mortgage already in existence, which is a lien upon the trust estate.  Such purchase and holding may actually be for the interest of the trust.  Hinckley, Wm. C., E. of, 189.

 

Narcotics.

Will.  Mental incapacity arising from the opium habit.  Chare to Jury.  Crittenden, Howard, E. of, 50.

 

Nephews and Nieces.

Succession.  Where decedent leaves no issue, father, mother, brother, or sister, but does leave a wife, and also children of a deceased brother or sister, the wife is heir, to the exclusion of such nephews and nieces.  In case of her death before distribution.  Her children are entitled to have distribution directly to them.  Linehan, Patrick, E. of, 83.

 

Non-resident.

Notice.  The widow, who was also administratrix, applied to the Court January 26, 1877, and had allotted to her, as a homestead, an unimproved parcel of real estate, which had never been used as a residence.

The non-resident heirs (brothers and sister, there being no children), asked to have the homestead order vacated, (their petition was filed July 16, 1877), but the application was denied.  Burns, Bernard, E. of, 155.

 

See Residence.

 

Notice.

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

 

Non-residents.  The widow, who was also administratrix, applied to the Court, January 26, 1877, and had set apart to her, as a homestead, an unimproved lot.

The heirs, who were non-residents, applied, July 16, 1877, to have the order vacated on the ground, that they had received no notice.  The application was denied.  Burns, Bernard, E. of, 155.

 

Sale of Real Estate.  First publication June 19th, last, July 9th;

HELD, to be a sufficient publication for twenty-one days.  Osgood, A. O., E. of, 153.

 

Variance between Notice and Bid.  Where there is a variance between an order and notice of sale and the purchaser’s written bid, the purchaser is bound by his bid, and cannot have the sale set aside on the ground of the variance.  Otis James, E. of, 222.

 

Notice of Probate.

Defective.  Proceedings, a nullity.  On suggestion, that notice of probate is defective, the court, of its own motion, should examine and vacate all proceedings subsequent to and dependent on such imperfect notice.  Cameto, Mercedes, E. of, 75.

 

Minors.  The appearance of minors in court is and can be no waiver of the statutory notice of ten days to be given by mailing or by personal service.  Nor can the defective service be remedied by a continuance for the purpose of giving minors proper notice.  All proceedings had subsequently to the filing of petition should be vacated; a new order entered; and another notice published.  Bartels, Conrad, E. of 130.

 

See Notice.

 

Notice to Creditors.

Value of Estate.  The notice to creditors must be based on the value of the estate, to be determined by inventory and appraisement.

When inventory shows exceeding  $10,000 in property, a four months’ notice is a nullity.  Executor is not permitted to contradict the inventory in that regard.  Loeven, Emil, E. of, 203.

 

Opium Habit.

Mental Incapacity.  Cause of.  Charge to Jury.  Crittenden, Howard, E. of, 50.

 

Opposition to Probate.

Pleading.  An opposition to the probate of a will, on the ground of menace, undue influence, etc., should disclose the facts constituting the improper conduct.  Myers, Margaret, E. of, 205.

 

See Charge to Jury:  Will: Pleading.

 

 

 

 

 

Transcribed by Pat Seabolt & Sue Wood.

Proofread by Betty Vickroy.


© 2007-2008 Patricia Seabolt & Sue Wood.




 





SAN FRANCISCO'S CASES REPORTED INDEX