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PROBATE COURT

OF THE

CITY & COUNTY OF SAN FRANCISCO

 

I  N D E  X.

 

 

Pages 311-328

 

 

Order for Payment of a Sum of Money.  Gift inter vivos.

Order by Decedent for a sum of Money not collected until after his death;

HELD, to be a valid gift inter vivos.  Cronan, Thomas E. of, 72.

 

Orphan Asylum.

Will.  Charitable Society.  The Boys’ Roman Catholic Orphan Asylum at San Rafael, is a charitable and benevolent society; and, as such, is entitled, under Sec. 1313, C. C., to take a bequest.  Tobin, Richard, E. of, 134.

 

Partial Distribution.

Community Property.  Although widow takes her share of the community estate as survivor, and not as heir, she may, nevertheless, apply for it to be set apart to her by partial distribution.  In that connection, the word, heir, includes the widow as survivor.  Ricaud, J. P., E. of, 158.

 

See Distribution.

 

Partition.

Administrator’s Commissions.  In case of property undergoing partition in 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.

 

Partner.

Beneficiary under Will.  The fact that partner is a beneficiary under will is no evidence that such partner has exercised any undue influence.  Brooks, Edmund, E. of, 141.

 

Partnership.

Void Marriage.  Dealings between man and woman, as husband and wife, such relationship being impossible, (there being an undissolved former marriage), cannot be held to constitute a partnership.

Wife under former marriage, is entitled to half of the property as community property.  Winters, J. W., E. of, 131.

 

Paternity.

Spurious Offspring of an Adulterous Wife.  Acts of a paramour in recognition of his paternity of such offspring cannot be deemed to constitute adoption, so as to entitle the child to inherit from him.  Sbarboro, Giovanni, E. of, 255.

 

Perpetuity.

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

 

Pleading.

Opposition to Probate.  An opposition to 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.

 

Pleading.

Revocation of Probate.  A general demurrer will not lie to a petition which, among other grounds for revocation, alleges that testatrix was not, at the date of the execution of supposed will, of sound and disposing mind, unsoundness of mind being, in itself, a properly pleadable fact.

But in alleging restraint, undue influence, or fraudulent misrepresentation, the facts constituting such restraint, undue influence, or fraudulent misrepresentation must be set forth.

It is not essential that the persons exercising such restraint, or influence, or who may have made the misrepresentation, should be designated.  It may be known to the petitioners, that such restraint or influence may have been exercised, or that misrepresentation may have been made without the names of the offending parties being known to petitioners.  Clarke, Margaret T., E. of, 259.

 

Pledge.

Estate’s Interest Therein.  In estimating the value of the estate to be administered, the Court should look to the probable excess in value of the pledge over the secured indebtedness, to fix the value of estate’s interest therein.  Kidd, George W., E. of, 239.

 

Redemption by Administrator.  Administrator may redeem pledged property without the presentation of any claim for the secured debt; but in so doing, he takes the risk that the pledge is worth the debt.  Eidenmuller, George, E. of, 87.

 

Practice.

Defective Notice.  Proceedings void by reason of defective notice.  The court should, of its own motion, on attention being called thereto, vacate all subsequent proceedings.  Cameto, Mercedes, E. of, 75.

 

Defective Service of Notice on Probate hearing.  When the Court failed to acquire jurisdiction of minors by reason of failure to mail or personally server notice of probate hearing on minor heirs, appearance of the minors in court is ineffectual to cure the defect; and the only way to correct the error is to vacate all proceedings subsequent to the filing of the petition, and proceed to publish a new notice.  Bartels, Conrad, E. of, 130.

 

Jury.  A verdict by a jury on a contested probate is no more binding on all parties than is a finding by the Judge, in so far as the right to petition for a revocation is concerned.  Cunningham, Mary, E. of, 214.

 

Moving Party on Contest of Probate.  On a probate contest, the contestant is plaintiff, and should proceed.  Collins, Thomas, E. of, 73.

 

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

 

Revocation of Probate.  When the year expires in which to apply for.  The petition was handed to the Judge late in the evening of Dec. 2, 1879, to revoke probate of will admitted, Dec. 2, 1878; and by the Judge, delivered to the Clerk on the day following, with instructions to file as of Dec. 2.

HELD, to be in time; and that citation based thereon need not issue within the year.  Sbarboro, Giovanni, E. of, 255.

 

See Pleading.

 

Precatory Words in Will.

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

HELD, to be merely precatory words.  Glass, Julius, E. of, 213.

 

Devise.  “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 absolutely.  Molk, John H., E. of, 212.

 

See Will.

 

Preferred Claim.

Account of Executor.  A settled account of an executor who has died, and whose estate is insolvent, is not a judgment in the sense that would make the balance found thereby against him, a preferred claim against his estate.  Kehoe, John, E. of, 127.

 

See Claim.

 

Pretermission of Illegitimate Child.

Will.  An illegitimate child inherits from her mother, if there be no mention of such child in the will, as pretermitted.  Wardell, Ada, E. of, 224.

 

Privileged Communications.

Evidence.  Husband and Wife.  Neither party can be examined as a witness touching conversations had between them even after the death of the other.  Low, C. L., E. of, 143.

 

Probate.

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

 

Contest.  On a probate contest, the contestant is plaintiff and should proceed.  Collins, Thomas, E. of 73.

 

Contest.  Mental Incapacity.  Alcoholism.  Undue influence.  When it is found that the proposed testatrix was mentally incapable by reason of chronic alcoholism, it is unnecessary to look further to see if undue influence has been exerted in procuring the will in contest.  Hannigan, Hepzabeth, E. of, 135.

 

Contest.  Undue Influence.  The fact that decedent’s partner is a beneficiary under a will raises no presumption that such partner has procured making of will by undue influence.  Brooks, Edmund, E. of, 141.

 

Newly Discovered Codicil must be offered for probate within a year from the date of the probate of the original will, or it is barred, the proposing of such codicil for probate being a contest of the original will.  Adsit, Elizabeth, E. of, 266.

 

Notice.  Res Adjudicata.  Where the affidavits on file proving notice are defective, but not antagonistic to the recitals of the decree, such recitals can be attacked only be a showing that they are untrue in point of fact, and further, that the Court was imposed upon by the evidence offered in the premises.  Rice, John D., E. of, 183.

 

Probate.

Pleading.  Opposition to Probate of will should, when the grounds are menace, undue influence, etc., disclose the facts constituting the improper conduct.  Myers, Margaret M., E. of, 205; Clarke, Margaret T., E. of, 259.

 

Probate Record.

Extraneous documents merely referred to in will, need not be made part of the probate record.  Myers, Margaret M., E. of, 205.

 

Public Administrator.

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.  Non-resident widow’s nominee entitled, as against Public Administrator.  Robie, A. H., E. of, 226; Cotter, Henry B., E. of, 179.

 

Grant of Letters.  Chinaman.  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 Yan, E. of, 181.

 

Revocation of Letters for failure to file inventory, etc.  Walsh, John, E. of, 251.

 

Purchaser at Probate Sale.

Bound by his Bid.  Where there is a variance between an order and notice of sale and the written bid, the purchaser is not, on that account, entitled to have confirmation set aside, and himself released.  Otis, James, E. of, 222.

 

Devise with Power to Sell.  A purchaser at a sale made under a devise to executors with power to sell may apply to the Court for distribution to him directly, of the purchased property.  No confirmation of such sale is required.  Delany, Matthew, E. of, 9.

 

Redemption of Pledged Property.

Claim.  The administrator may redeem pledged property without the presentation of any claim for the secured debt; but in so doing, he takes the risk that the pledge is worth the debt.  Eidenmuller, George, E. of, 87.

 

Removal of Administrator.

Jury.  Administrator not entitled to a jury to try the issues on application for his removal.  Doyle, Ellen, E. of, 68.

 

Rents Pending Administration.

Homestead.  When the widow, who is also administratrix, remained in possession of homestead premises after the return of inventory; and it appeared that such premises exceeded $5,000 in value;

HELD, that she should account to the estate for a portion of the rent of the premises proportionate with such excess in value.  Titcomb, A. H., E. of, 55.

 

Property Conditionally Devised.  Where a parcel of land has been devised on the condition that devisee pay a charge thereon of one thousand dollars, the executrix should collect the rents and pay the taxes thereon, until the condition has been satisfied.  Broad, Charles, E. of, 188.

 

Renunciation.

Widow.  A renunciation by testate decedent’s widow of “all claim to my estate except under this will,” is not a renunciation of widow’s share of community property.  She takes such share as survivor, not as heir.  Mumford, George H., E. of, 133.

 

Res Adjudicata.

Claim allowed by one of two administrators, and reported before its allowance by Probate Judge in his first annual account--a second annual account not referring to the claim was allowed.  A petition for sale of real estate was filed; and, on hearing, the claim was objected to.  The question was reserved; and subsequently the heirs asked to be permitted to contest it.

HELD, that there had been no final adjudication on the claim.  Whitmore, H. M., E. of, 103.

 

Grant of Letters.  What is thereby adjudicated.  Whether there is property; whether the Court has jurisdiction; and whether the applicant for letters is competent, there being no such contest as to the allegation of petition as will work an estoppel.

When letters have been granted to a person, whether claiming the grant as heir or creditor, and there has been no contest on such claim, to act as an estoppel, the question of heirship or the validity of the claim as creditor must still be open to be passed upon in an independent proceeding.  Haskell, Eliza, E. of, 204.

 

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

 

Residence.

Grant of Letters.  Nominee of non-resident widow, entitled to letters over Public Administrator.  Cotter, Henry B., E. of, 179; Robie , A. H., E. of, 266.

 

Nominee of Non-resident executor is not entitled as against Public Administrator.  Murphy, Mary, E. of, 185.

 

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

 

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

 

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

 

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

 

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

 

See Alien:  Domicile:  Non-resident.

 

Restraint.

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

 

Revocation of Letters.

Public Administrator.  Grounds.  Failure to file inventory.  Walsh, John, E. of, 251.

 

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.

 

What is Mal-administration.  It is no ground for revocation of letters that executors have not filed their accounts; the law is merely directory on that point; and there may be good reasons for delay.

It is no ground for revocation that executors have failed to sue for debts appraised as valueless.  It is not the duty of executor, where the endorser is a corporation not apparently organized for the purpose of guarantee on notes. 

Executors have no right to pay assessments on stock shares, unless they, themselves, or the heirs or creditors are prepared to take the risk that the stock will return the assessment paid.  Such failure to pay assessments is not mal-administration.

All These matters are proper to be heard on settlement of account; and even if they were injuries to the estate, they might be simple errors in judgment, for which executors could not be held liable.  Stow, J. W., E. of, 97.

 

Revocation of Probate.

Attorney appointed by the Court to represent minor heirs on contest of will cannot waive minor’s right to revoke probate, or bind the minor.  Devoe, James, E. of, 6.

 

Attorney for Minors on probate of will is not entitled to institute proceedings to revoke probate.  Cameto, Mercedes, E. of, 75.

Limitation of one Year to apply for.  When it expires.  Petition handed to the Judge late in the evening of Dec. 2, 1879, to revoke probate of will admitted, Dec. 2, 1878, and by the Judge delivered to the Clerk on the day following, with instructions to file as of Dec. 2, 1879.

HELD, to be in time.  Citation need not issue before expiration of years.  Sbarboro, Giovanni, E. of, 255.

 

Newly Discovered Codicil must be offered for probate within a year from date of probate of original will, such offer being in the nature of a contest of such original will.  Adsit, Elizabeth, E. of, 266.

 

Non-resident Alien, after ten years from probate has no interest in estate, which would entitle her, as heir, to apply for revocation of probate.  It is possible that five years works an escheat in the estate.  Broderick, David C., E. of, 19.

 

Pleading.   A general demurrer will not lie to a petition which, among other grounds for revocation, alleges that testatrix was not, at the date of execution of supposed will, of sound and disposing mind.  Such an averment is a proper allegation of an issuable fact, to wit:  the fact of unsoundness of mind.  Clarke, Margaret T., E. of, 259.

But in alleging restraint, undue influence, or fraudulent misrepresentation, the facts constituting such restraint, undue influence, or fraudulent misrepresentation must be set forth.  Clarke, Margaret T., E. of, 259; Myers, Margaret M., E. of, 205.

It is not essential that the persons exercising such restraint, or influence, or making the misrepresentations be actually designated.  The petitioners for revocation may know that the will is a nullity by reason of the matters recited, and yet not know the parties guilty of the fraudulent conduct.  Clarke, Margaret T., E. of, 259.

 

Revocation of Will.

Revoked by safe return from a particular voyage.  White, J. B., E. of, 157.

 

Right of Administer.

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

 

Non-resident Widow has the right to nominate administrator over the Public Administrator.  Cotter, Henry B., E. of, 179; Robie, A. H., E. of, 226.

 

See Grant of Letters.

 

Sale of Real Estate.

Broker, Contract with.  A contract for the sale of real estate through a broker wherein it is stipulated that the broker shall, for his remuneration, have all the property brings above a given sum, cannot be supported, notwithstanding such net amount be a fair price for the property.  Ballentine, James, E. of, 86.

 

Devise to Executors does not require confirmation.  A sale of real estate by an executor under a devise does not require confirmation by the Court.  Grantee is entitled under his deed to have the land distributed directly to himself.  Delany, Matthew, E. of, 9.

 

Grounds of Opposition.  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 determination of litigation before granting order.  Schroeder, H., of E. of, 7.

 

Married Woman’s Estate.  Claim against.  A claim upon a mortgage by married woman given to secure husband’s debt held to be ground for order of sale.  Marden, Mary J., E. of, 184.

 

Specific Devise to repay Executor’s disbursements for taxes, A sale of property specifically devised may be had by executor, to reimburse himself for disbursements for taxes and assessments attaching to the devised estate, which it was his duty, pending administration, to keep paid.  Mogan, A., E. of, 80.

 

Sufficiency of Notice.  First publication June 19th; last, July 9th;

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

 

Written Bid.  Where there is a variance between an order and notice of sale and the written bid, the purchaser is not entitled to have confirmation of sale set aside and himself released from his purchase on the ground of such variance.  Otis, James, E. of, 222.

 

Sale of Share of Deceased Heir.

Court has no authority to order.  The Court has no authority to order a sale of the share of deceased heir, (not having acquired jurisdiction to administer his estate), to pay a debt secured by the assignment of such share.  Hite, Ormsby, E. of, 232.

 

Seaman’s Estate.

U. S. Shipping Commissioner.  Seaman’s Estate on shore.  The U. S. Shipping Commissioner has no standing in Court, under the act creating his office, to enable him to apply for letters of administration.  His duty extends only to effects on shipboard belonging to a seaman dying on voyage to this port.  Bedford, John, E. of, 60.

 

Separate Estate.

Community Funds expended upon the separate estate of either husband or wife do not thereby make it common property; but such expenditure may constitute a claim against such separate estate in favor of the community.  Patton, Charles, E. of, 241.

 

Homestead.  Unimproved lot, never used as a residence, set apart to widow, there being no children, and the heirs being non-resident brothers and sisters;

Application by heirs that widow, who is also administratrix, include such property in her accounts, the same being separate estate of decedent, denied.  Burns, Bernard, E. of, 155.

 

Married woman.  A mortgage given by a married woman, upon her separate property, to secure her husband’s debt, held to be a ground for order of sale; such debt being a “debt against decedent.”  Marden, Mary J., E. of, 184.

 

Policy of Insurance.  That proportional part of a policy of insurance for which the premiums were paid by husband before marriage, is separate.  Webb, M. S., E. of, 93.

 

Wife’s Estate.  Where an account has been placed by the wife in the joint names of herself and husband, such a transaction is merely authority to husband to draw, revoked by her death; and the fund remains her separate estate.  Cunningham, Katie, E. of, 76.

 

Settlement of Account.

See Account.

 

Shipping Commissioner of U. S.

Seaman’s Property.  U. S. Shipping Commissioner has no right, under Act of Congress creating the office, to apply for letters of administration upon the property on shore of a seaman decedent on voyage to this port.  The Commissioner’s right of possession extends only to the effects of the seaman on ship-board.  Bedford, John, E. of, 60.

 

Signature.

Different requirements as to Olographic and Attested Will.  A signature to an olographic will need not be subscribed at the foot of the instrument.  A signature to a will attested by witnesses must be a subscription.  Barker, Martha L., E. of, 78.

 

In the Body of the Will.  The signature to an olographic will in this form, “This is the last will of Philip Donoho,” held to be sufficient.  Donoho, Philip, E. of, 140.

 

Not necessarily a subscription, when to Olographic will.  Signature need not be a subscription.  Johnson, George W., E. of, 5.

 

Partial, by Witness to Will.  The signature of a witness appears to have been only partially traced, and probate must be denied.  Winslow, Edward, E. of, 124.

 

Subscription.  To other than Olographic Will should be at the foot of the instrument.  A signature placed before the clause nominating executor:

HELD, that the testator should have called the attention of the witnesses 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.

 

Statue of Limitations.

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

 

Loan on Verbal Contract to Repay.  Transaction one of loan, and not a deposit.  A verbal contract to pay on demand.  Statute runs from date of loan.  Galvin, John, E. of, 82.

 

Statutes, State of California, Construed.

Escheat.  1856, p. 137.  Broderick, David C., E. of, 19.

 

Homestead.  1862, p. 519; 1867-8, p. 116, Cameto, Martin, E. of, 42.

 

See Codes.

 

Statutes, U. S. at Large, Construed.

Shipping Commissioner.  Title 53, Ch. 3, p. 883.  Bedford, E. of, 60.

 

Cutting Timber on Public Land, p. 1049, Sec. 5388.  Whitmore, E. of, 103.

 

Stay of Proceedings.

Contested Will.  Appeal in the matter of a contested will works a stay of proceedings.  Cunningham, Mary, E. of, 214.

 

Stepchild.

Support of.  When a guardian marries his ward’s mother, the guardian, mother, and ward, each having estate, the maintenance of the ward should be borne by all three, to be assessed equitably upon them by the Court.  Mohlenhauer, Maria, E. of, 162.

 

Stepson.

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

 

Subscription to Will.

See Signature.

 

Succession.

Contract.  Foreign Law, unless made part of a contract affecting succession, is to be disregarded, Baubichon, J. B., E. of, 55.

 

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

 

Illegitimacy.  An illegitimate half-brother, by the father’s side, cannot be an heir.

Illegitimate half-sisters, by the mother’s side, inherit.  Conflict between Secs. 1387 and 1388, C. C.; Sec. 1388 prevailing in accordance with Sec. 4484, Political Code.  Harrison W. B., E. of, 121.

 

Nephews and Nieces excluded unless there is a deceased brother or sister to inherit with them, when decedent leaves no issue, father, or mother, but leaves a wife, the wife taking entire estate.  Linehan, Patrick, E. of, 83.

 

Will.  Pretermission of Illegitimate Child.  An illegitimate child, there being no mention of her in will, inherits, as pretermitted.  Wardell, Ada, E. of, 224.

 

See Distribution.

 

Survivor.

Partial Distribution, Widow surviving, entitled to.  Widow, as survivor of community, is entitled to apply for partial distribution to her of her share of community property; and in that connection, ranks as heir.  Ricaud, J. P., E. of, 158.

 

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.

 

Taxes.

Conditional Devise.  Executrix should pay taxes on property conditionally devised, until there has been compliance by devisee with the condition.  Broad, Charles, E. of, 188.

 

Specific Devise.  Taxes and Assessments upon specific devise should, pending the administration, be paid by executor, to be re-imbursed by the devisee on distribution.  Should the devisee decline to pay, the executor may have an order of sale of devised property for his outlay.  Mogan, A., E. of, 80.

 

Tenancy in Common.

Homestead.  Residence, to comply with the Homestead Act, (Statutes 1867-8, p. 116), must be the principal use, to which the premises are devoted.  Living over a shop used by both the tenants in common as a place of business is but a secondary use of the premises.  Cameto, Martin, E. of, 42.

 

Trust.

Delayed Distribution.  Will.  A devise whereby the only trust created is that of executorship, and distribution thereby postponed until a given time.  Marvin, C. B., E. of, 163.

 

Trust Failing by Death of Beneficiary, Trustees entitled to their Expenses.  In a trust which has failed by reason of death of beneficiary, the trustees should be paid expenses legitimately incurred by them.  Hinckley, William C., E. of, 189.

 

Verbal Instructions to Devisee.  Quaere:  Whether loose verbal instructions given to beneficiary while drafting a will raise any presumption of a trust.  Brooks, Edmund, E. of, 141.

 

See Devise.

 

Trustee as Purchaser of Outstanding Mortgage.

Not Adverse to his Trust.  There is nothing adverse to trust in the purchase, by a trustee, of an outstanding mortgage against the fund in trust.  It may actually be a benefit to the fund that such mortgage should be controlled by a trustee.  Hinckley, William C., E. of, 189.

 

Undue Influence.

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

 

Mental Incapacity existing no need of finding Undue Influence.  It is not necessary to consider whether or no, there has been undue influence exerted upon the mind of a testatrix, to procure the execution of a particular testamentary disposition, when it is found that such proposed testatrix was mentally incapacitated by reason of chronic alcoholism.  Hannigan, Hepsabeth, E. of, 135.

 

Partner.  The fact that a partner is a beneficiary under a will is no evidence of undue influence exercised by him.  Brooks, Edmund, E. of, 141.

 

Pleading.  The facts constituting the undue influence, menace, etc., should be set forth in the opposition to probate.  Myers, Margaret M., E. of, 205; Clarke, Margaret T., E. of, 259.

 

Wife.  Undue influence by wife to the exclusion of son.  Charge to Jury.  Low, C. L., E. of, 143.

 

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

 

Will, Drafted by Beneficiary.  The fact that the will was drafted by beneficiary is, at most, a suspicious circumstance; in itself, it raises no presumption of undue influence.  Byrne, H. H., E. of, 1.

 

Will.  Misrepresentation.  Charge to Jury.  Black, James, E. of, 24.

 

See Revocation of Probate and Probate.

 

Unimproved Lot.

Homestead.  An unimproved lot, never used as a residence, set apart as a homestead to widow, there being no minor heirs.  Burns, Bernard, E. of, 155.

 

Uses.

See Devise:  Trusts:  Will.

 

Verdict. 

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

 

Waiver.

Claim.  Interest on.  A stipulation endorsed on a claim foregoing any demand thereon beyond a sum named, waives interest thereon.  Bleakley, Francis, E. of, 235.

 

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

HELD, that the failure to object to want of presentation should have been made in District Court; That it comes too late after judgment.  Page, Thomas S., E. of, 61.

 

Ward, Guardian and,

See Guardianship.

 

Widow.

Entitled to Partial Distribution as Heir.  On partial distribution, although widow takes as survivor of community, yet the term, heir, includes her, so as to entitle her to apply for her share of community property.  Ricaud, J. P., E. of, 158.

 

Grant of Letters.  Non-resident Widow, entitled, as against Public Administrator, to nominate administrator.  Robie, A. H., E. of, 226; Cotter, Henry B., E. of, 179.

 

Homestead.  Widow entitled to have a homestead, allotted to her by the Probate Court, although there are no minor children.  Ballentine, James, E. of, 86.

 

Homestead.  When the widow, who is also administratrix, remained in possession of homestead premises after return of inventory; and it appeared that such a premises exceeded $5,000 in value;

HELD, that she should account to the estate for a portion of the rent of the premises proportionate with such excess in value.  Titcomb, A. H., E. of, 55.

 

Homestead.  Unimproved lot set apart to widow, there being no children.  Motion to vacate order setting it apart made by non-resident six months afterwards, denied.  Burns, Bernard, E. of, 155.

 

Renunciation by, under Will.  A renunciation by widow of “all claim to my estate except under this will,” is not a renunciation of widow’s share of community property.  She takes such share as survivor, not as heir.  Munford, George H., E. of, 133.

 

Wife of a Life Convict, who must be considered civilly dead.  The wife of a convict under a sentence for life, is a widow, and as such, entitled to take a legacy or devise, where widowhood is the condition of its vesting.  Stott, William, E. of, 168.

 

Widow’s Allowance.

Wife Separated from her Husband under circumstances which would preclude her from the right, in his 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.

 

Wife.

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

 

Heir.  Surviving Wife is heir, to the exclusion of nephews and nieces, when there is no issue, father, mother, brother, or sister surviving.  To enable nephews or nieces to share in the estate, there must be a brother or sister surviving to take with them.  Linehan, Patrick, E. of, 83.

 

Will.  Undue influence by wife to exclusion of son.  Charge to Jury.  Low, C. L., E. of, 143.

 

See Widow.

 

Will.  Administration.

Non-resident Executor.  In case of a will, the Court has discretion as to appointee as administrator.  There being no valid reason urged against it, preference is given to a public officer, who is more subject to Court’s control than a private person.  Murphy, Mary, E. of, 185.

 

Public Administrator.  Letters issued to Public Administrator, rather than to a Chinaman, unacquainted with our laws and language, and whose permanent residence here is doubtful.  Yee Yun, E. of, 181.

 

See Administration:  Grant of Letters.

 

Will.  Adoption Recited in.

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 apply himself or nominate an applicant for letters.  Keenan, John C. E. of, 186.

 

Will.  Attorney for Minors.

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

 

Will.  Bequest.

Bequest to a Religious Corporation.  Void, under Sec. 1275, Civil Code.  Wright, Mary, E. of, 213.

 

Will.  Bequest in Trust Failing by reason of Death.

Death.  When bequest in trust fails by reason of the death of the beneficiary, trustees should be paid expenses incurred in behalf of trust.  Hinckley, William C., E. of, 189.

 

Will.  Bequest, Charitable.

Devise or Bequest to Charitable or Benevolent Society.  The Boys’ Roman Catholic Orphan Asylum at San Rafael, is a charitable and benevolent society under Sec. 1313, E. C., and, as such, is entitled to take a bequest.  Tobin, Richard, E. of, 134.

 

Will.  Bequest in Trust Failing for want of Distributee.

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

 

Will.  Cancellation of Clause.

Cancellation of a singe Clause.  When the intent to cancel a single clause in a will is clearly made out, the will should be admitted to probate without such clause.  Chinmark, Moses, E. of, 128.

 

Will.  Codicil Discovered after Probate.

Codicil Subsequently Discovered.  Must be offered for probate within a year from the date of probate of original will, the proposing of such codicil for probate being in the nature of a contest of the original will.  Adsit, Elizabeth, E. of, 266.

 

Will as to Community Property.

Husband’s Will affects only his Share therein.  Widow’s Share of Community.  She takes it as survivor, not as heir.  A renunciation of “all claim to my estate except under this will,” is not a renunciation of widow’s share of community.  Mumford, George H., E. of, 133.

 

Will.  Conditional.

To be valid in case of death on a particular voyage; a nullity on returning therefrom.  White, J. B., E. of, 157.

 

Will.  Contest.

Contest on Probate.  The right to apply for revocation of will admitted to probate is the same, whether the original probate was a finding by the Judge or the verdict of a jury.  Cunningham, Mary, E. of, 214.

 

Will.  Distribution Delayed.

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

 

Will.  Execution of Attested.

Attestation.  No formal attesting clause necessary; request to witnesses to sign need not be a direct request.  Crittenden, Howard, E. of, 50.

 

Attestation of.  At the time of executing the will, there must be some form of request on the part of the testator, of witnesses, to enable them to properly attest the execution, though such request need not be in words.  Fusilier, John, E. of, 49.

 

Attestation.  The mark of an illiterate witness to a will may be attested by the co-witness, who writes the name of such illiterate witness to the will and thereafter witnesses the mark.  Derry, William R., E. of, 202.

 

Signature written by another person not a witness to the will, and not in the presence of the witnesses.

HELD, that the testator should have called the attention of the witnesses 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.

 

Signature by Witness incomplete.  The signature of the witnesses was incomplete.  The first name or initials having been written, the last name not definitely appearing to have been actually traced, (either with pencil or ink), and the execution of the will being imperfect, probate is denied.  Winslow, Edward, E. of, 124.

 

Signature.  Should be at the foot of attested will.  A will other than olographic, should be subscribed at the foot.  Should such signature, however be at the bottom of any portion of the will, the will is good for all that precedes the signature.  McCullough, John, E. of, 76.

 

Signature to Attested Will.  A will attested by witnesses must be subscribed at the foot of the instrument to be completely effectual.  Barker, Martha L., E. of, 78.

 

Will.  Execution of Olographic.

Autograph Instrument made by Person Dying before Passage of Act.  When testator dies before passage of Act authorizing an olographic will, such will is ineffectual.  The law at the date of death governs.  McCloud, James, E. of, 23.

 

Olographic, before Passage of Act.  An olographic will executed before passage of Act authorizing such an instrument, by a person dying subsequently to the passage of the Act, is valid, the will being effectual as of the date of the death.  Barker, Martha L., E. of, 78.

 

Signature to olographic will need not be subscribed at the foot of the instrument.  It is otherwise as to a will attested by witnesses.  Barker, Martha L., E. of, 78.

 

Signature need not be a subscription.  Johnson, George W., E. of, 5.

 

Signature.  “This is the last will of Philip Donoho,” there being no subscription at the foot of the document, held to be effectual as a signing, it appearing that the testator intended it to be a completed instrument in that form.  Donoho, Philip, E. of, 140.

 

Will.  Future Contingent Interest.

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

 

Will.  Inofficious.

Ab Irata.  Mental incapacity.  Restraint.  Undue influence.  Fraudulent misrepresentation.  Delusion.  Charge to Jury.  Tittel, Frederica A., E. of, 12.

 

Narcotics.  Mental incapacity arising from opium habit.  Undue influence.  Charge to Jury.  Crittenden, Howard, E. of, 50.

 

Restraint.  Unsound mind.  Alcoholism.  Undue influence.  Misrepresentation.  Habitual intemperance.  Charge to Jury.  Black, James, E. of, 24.

 

Undue Influence by wife to exclusion of son.  Charge to Jury.  Low, C. L., E. of, 143.

 

Will.  Interpretation of.

Appointment of Executor.  When it can be fairly ascertained who is meant by the testator, mere inaccuracies in the style given by him to the presiding officer of a secret society will be disregarded and testator’s intent carried out.  Colette, O. A. P., E. of, 116.

 

Bequest  to those of the before mentioned children who have attained the age of twenty-one years;”

HELD, to apply to those of that age at the date of death, to the exclusion of minors.  Crooks, Matthew, E. of, 247.

 

Devise covers other estate than realty, notwithstanding its original primary signification.  Pfuelb, Margaretha, E. of, 38.

 

Devise to a person and “the issue of her body;”

HELD, that the words do not create a fee in the first devisee, unless such is the clear intention of testator.  “Issue of her body,” not synonymous with the word “heirs,” to bring the phrase within the rule of Shelley’s Case and Norris v. Hensley, 27 Cal., 439.  McDonniel, John, E., of, 94.

 

Devise.  Precatory Words.   “To wife’s use and interest or those of children,” with power of disposition, held that wife takes absolutely.  Glass, Julius, E. of, 213.

 

Devise.  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 absolutely in wife, and not to create a trust.  Molk, John H., E. of, 212.

 

Will.  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, a legacy that may ultimately, be satisfied from another source.  Radovich, Luco, E. of, 118.

 

Will.  Mental Incapacity.

Experts.  Alcoholism.  Mental Incapacity arising from.  Instructions to Jury.  O’Keefe, E. of, 154.

 

Mental Incapacity arising from alcoholism, ground of refusal to probate a will.

When such mental incapacity exists, it is unnecessary to enquire whether there has been undue influence.  Hannigan, Hepsabeth, E. of, 135.

 

See Charge to Jury.

 

Will.  Mortgaged Property.

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.

 

Will.  Pleading.

Opposition to Probate.  Pleading.  Opposition to probate of a will should disclose the facts constituting the alleged menace, undue influence, etc. Myers, Margaret M., E. of, 205; Clarke, Margaret T., E. of, 259.

 

Will.  Practice.

Probate Practice.  On a contest it is the contestant who is plaintiff and should first proceed with the trial.  Collins, Thomas, E. of, 73.

 

Will.  Pretermission.

Pretermission of Illegitimate Child.  An illegitimate child inherits from her mother, if there be no mention of the child in the will, as pretermitted.  Wardell, Ada, E. of, 224.

 

Will.  Public Administrator.

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

 

Will.  Record of.

Extraneous documents merely referred to in a will, need not be made part of the probate record of the will.  Myers, Margaret M., E. of, 205.

 

Will.  Specific Devise.

Taxes and Assessments upon.  Pending the administration of the estate, executor should pay taxes and assessments upon specific devises or bequests, to be re-imbursed on distribution, when if need be, he may have order of sale of devised property to collect the amount.  Mogan, A., E. of, 80.

 

Will.  Survivorship.

Devise.  Death before Distribution.  Survivorship.  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.

 

Will.  Undue Influence.

Drafted by Beneficiary.  The fact that will was drafted by beneficiary is, at most a suspicious circumstance; but, in itself, raises no presumption of undue influence.  Byrne, H. H., E. of, 1.

 

See Charge to Jury.

 

Partner.  The fact that a partner is a beneficiary under a will is no evidence of any undue influence on the part of the partner.  Brooks, Edmund, E. of, 141.

 

Will,

See administration:  Bequest:  Devise:  Grant of Letters:  Jury:  Trust.

 

Witness.

Discovery.  Examination of a witness in Probate Court under Sec. 1459, C. C. P., to discover property of estate;

HELD, to apply only to transactions between witness and decedent in lifetime of decedent, so that administrator may, as to his knowledge in the premises, stand on equal terms with witness.

It does not apply to matters occurring after death.  Imhaus, Louis, E. of, 99.

 

On Grant of Letters.  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.

 

Wife cannot be a witness as to conversations occurring between herself and husband, no matter what the subject of such conversations may have been.  Low, C. L., E. of, 143.

 

See Evidence.

 

 

 

 

 

Transcribed by Pat Seabolt & Sue Wood.

Proofread by Betty Vickroy.


© 2007-2008 Patricia Seabolt & Sue Wood.




 





SAN FRANCISCO'S CASES REPORTED INDEX