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REPORTS OF CASES

IN THE

PROBATE COURT

OF THE

CITY & COUNTY OF SAN FRANCISCO,

FROM JANUARY 1, 1872 TO DECEMBER 31, 1879.

 

 

 

 

 

MILTON H. MYRICK,

PROBATE JUDGE.

 

Edited by

T. H. REARDEN,

OF THE

SAN FRANCISCO BAR.

 

San Francisco, Cal.,

Sumner Whitney & Co.

1880.

 

 

PREFATORY.

 

CASES REPORTED.

 

­_____________________

 

 

 

WORK COMPLETED

 

Updated

March 24, 2008

 

 

 

Adsit, Elizabeth,Estate of.  Subsequently discovered codicil must be offered within a year from probate of will.  (C. C., 14,1287.  C. C. P., 1327, 1333,1908.) p.266

 

Austerhaudt, Minors,Guardianship of.  Guardianship, contest as to, between divorced parents. (C. C., 197-8, 246.  C. C. P., 1751.) p. 18

 

Austin, Margaret, Estate of.  Jurisdiction as affected by residence.  Wife's residence same as husband's.  (Pol. C., 52.  C. C. P., 1294.) p. 237

 

Ballentine, James, Estate of.  1--Widow, there being no minor children, entitled to have homestead.  2--Sale of real estate.  Employment of brokers.  Brokerage. Attorney's fees.  (C. C. P., 1465, 1486, 1517, 1544, 1549-53-54, 1616-18.) p. 86

 

Barg, John C., Estate of.   An agreement by guardian that he will support minor, if granted letters, binding on the guardian.  (C. C., 246.  C. C. P., 1771) p. 69

 

Barker, Martha L.,  Estate of.  Will, olographic, executed before existing statute by person dying after its passage, valid.  Signature need not be a subscription; otherwise as to an attested will.  (C. C., 1276-7.  C. C. P., 1309, 1940) p. 78

 

Bartels, Conrad, Estate of.  On probate, appearance of minors in open Court, no waiver of service of notice by mailing or personal delivery.  (C. C P., 1303, 1304-6) p. 130

 

Baubichon, J. B., Estate of.  Distribution.  Foreign law, unless made part of contract affecting succession, to be disregarded.  (C. C., 1376) p. 55

 

Bedford, John,  Estate of.  Seaman's property on shore.  U. S. Shipping Commissioner, no right to letters as against Public Administrator on estate of seaman who dies on voyage to this port.  (U.S. Statutes at Large, Title L1II, ch. 3, p. 883) p. 60

 

Beideman, J. C., Estate of.  Custody of funds by administrator.  May deposit them in bank to his credit.  Not chargeable with interest, unless he uses them.  Commissions of administrator.  Extra allowance.  (C. C. P., 1581, 1618) p. 66

 

Beverson, Claus, Estate of.  Marriage evidence of.  Meretricious cohabitation, with or without promise of marriage, does not constitute marriage.  (C. C., 57, 68.  C. C. P., 1963) p. 35

 

Black, James, Estate of.  Will.  Mental incapacity arising from alcoholism.  Charge to Jury.  (C. C., 1272.  C. C. P., 1912, 1313, 1317)  p. 24

 

Bleakley, Francis, Estate of.  Claim, interest on.  Interest is waived by a stipulation endorsed on claim waiving anything beyond a sum stated in stipulation.  (C. C. P., 1490)  p.235

 

Broad, Charles,  Estate of.  Account of executrix.  Taxes, etc., to be paid by estate during administration, on property conditionally devised and until condition complied with.  (C. C. P., 1669)  p. 188

 

Broderick, David C., Estate of.  Revocation of probate.  Non-resident alien barred in ten years from contesting will, because of loss of interest in estate. Probate final, in one year, as to married woman.  Coverture not a disability as to probate contest.  (C. C., 672.  C. C. P., 1269-72, 1327, 1333.  Statutes 1856,  p.137)  p.19

 

Brooks, Edmund,  Estate of.  Will.  Undue influence by partner.  That partner is beneficiary, no evidence of undue influence.  (C. C., 1272.  C. C. P., 1312, 1313-17)   p. 141

 

Burns, Bernard,  Estate of.  Homestead.  Unimproved lot set aside to widow, there being no minor heirs.  Non-resident heirs ask to have such decree vacated, claiming want of notice by reason of their non-residence.  Application denied.  (C. C. P., 1465)  p. 155

 

Byrne, H. H.,  Estate of.  Will.  Undue influence.  Will drafted by beneficiary.  No presumption of undue influence.  Widow’s allowance.  Wife separated from husband not entitled to, unless entitled to support in lifetime of decedent.  (C. C., 1272.  C. C. P., 1312, 1466-8)  p. 1

 

Cameto, Martin,  Estate of.  Homestead.  Residence on lot held under a tenancy in common with strangers.  Residence should be the principal use of premises.  Homestead Act of 1862 dispensed with necessity of a written abandonment.  Faithless wife not member of husband’s family not entitled to homestead.  (C. C., 146, 1237.  Statutes 1867-8, p. 116; Stat. 1862, p. 519)  p. 42

 

Cameto, Mercedes,  Estate of.  Will.  Revocation of probate; attorney appointed by Court, not entitled to institute proceedings for.  Defective notice of probate.  Court should, of its own motion, vacate all subsequent proceedings.  (C. C. P., 1303-4, 1927, 1718)  p. 75

 

Chinmark, Moses,  Estate of.  Will.  Cancellation of a single clause in will.  Will proved without such clause.  Attorney’s service for executors for their benefit as legatees should be disallowed in their account.  (C. C. 1292, C. C. P., 1616)  p. 128

 

Clarke, Margaret T.,  Estate of.  Revocation of probate.  Pleading.  Petition setting forth that testatrix was of unsound mind, sufficient, but the facts as to restraint and undue influence, must be set forth.  (C. C. P., 1312, 1317, 1327, 1329)  p. 259

 

Colette, Olivier Alexandre P.,  Estate of.  Will.  Appointment of executor.  Where it can be fairly ascertained who is meant, inaccuracies in styling an officer of a society who is intended as executor, disregarded.  (C. C., 1940, 1371)  p. 116

 

Collins, Thomas,  Estate of.  Will.  Practice on contest.  Contestant is plaintiff, and should first proceed.  (C. C. P., 1812) p. 73

 

Cotter, Henry B.,  Estate of.  Nominee of non-resident widow entitled to letters as against the Public Administrator.  (C. C. P., 1865, 1869) p. 179

                 

Crittenden, Howard,  Estate of.  Mental incapacity from opium.  Undue influence.  Will.  Attestation; no formal, necessary.  Request to witnesses need not be direct.  ( C. C., 1270, 1272, 1276.  C. C. P., 1812, 1813, 1817) p. 50        

 

Cronan, Thomas,  Estate of.  Gift inter vivos.  Delivery of deed for property and order for the money to be paid, held to be good, though not cashed until after decease.  (C. C., 1147) p. 72

 

Cronin, John and Johanna, Estates of.  1—Where an heir dies pending distribution.  Estate of deceased heir should first be settled;

  2—Will.  Distribution.  Survivor.  A devise to two beneficiaries and the survivor of them at distribution; survivor (one having died before distribution)  takes estate to exclusion of grantee of decedent devisee.  (C. C., 1845.  C. C. P., 1665-6-7) p. 252

 

Crooks, Matthew, Estate of.  Jurisdiction to construe a will so as to ascertain distributees.  Interpretation of bequest,  “To those of the before mentioned children, who have attained the age of twenty-one years,”  held to apply only to those who were of that age at testator’s death.  (C. C., 1886-7-41.  C. C. P., 1665-6) p. 247

 

Cunningham, Katie,  Estate of.  Husband and wife.  Presumption as to gift of moneys in bank.  Held, that joining husband’s name with her own was a mere authority to draw, terminated by death.  (C. C., 2355) p. 76

 

Cunningham, Mary,  Estate of.  Will.  Contest on revocation of probate.  Right to apply for revocation, the same, whether tried with or without a jury.  An appeal works a stay of proceedings.  (C. C. P., 946, 1327) p. 214

 

Dall, William L.,  Estate of.  Decree of distribution conclusive on all creditors, resident and non-resident.  (C. C. P., 1493, 1650) p. 159

 

Delany, Matthew,  Estate of.  Sale of real estate by an executor under a devise requires no confirmation by Court.  Grantee may have distribution directly to himself.  Beneficiaries entitled to residue may take estate either in kind or share proceeds of sale.  (C. C. P., 1561) p.  9

 

Derry, William R.,  Estate of.  Will.  Attestation by one witness of the mark of illiterate co-witness.  Held, to be valid.  (C. C., 1276) p. 202

 

Devoe, James,  Estate of.  Revocation of probate.  Attorney appointed by Court cannot waive minor’s right or bind the minor.  (C. C. P., 1307, 1333, 1718) p.  6

 

Donoho, Philip, Estate of.  Will.  Olographic.  Signature.  Will commencing, “This is the last will of Philip Donoho,”  There being no subscription, a valid signing, the document appearing to be intended as a completed instrument.  (C. C., 1276-7  C. C. P., 1809) p. 140

 

Doyle, Ellen, Estate of.  Removal of administrator.  Administrator not entitled to a jury on a trial for such purpose.   (C. C. P., 1436-8) p. 68

 

Dunn, John,  Estate of.  Jurisdiction of Probate Court.  Cannot try title as between estate and stranger.  Where there is any color of title in estate, it should be distributed.  This rule, not in conflict with the duty of the Court not to burthen its record with decrees where there is clearly no title whatever.  (C. C. P., 97, 1665)   p. 122

 

Eidenmuller, George,  Estate of.  Payment of debt secured by pledge, without presentation and allowance.  Administrator may pay at his risk that the pledge will be worth the amount paid to redeem.  (C. C. P., 1493, 1513)  p. 87

 

Fegan, Eliza,  Estate and Guardianship of.  Guardianship of insane wife.  Facts showing that the husband is not a proper appointee.  (C. C. P., 1763)  p. 10

 

Fleury, Jean,  Estate of.  Chattel mortgage.  Claim on, ignored by Court in allowing household furniture to widow.  (C. C. P., 1465)  p. 227

 

Fusilier, John,  Estate of.  Will.  Attestation of.  There must be some form of request by testator to enable witnesses to attest validity of execution.  (C. C., 1276)  p. 40

 

Galvin, John,  Estate of.  Loan.  Facts showing transaction to be loan rather than deposit.  Verbal contract to pay on demand.  Statute of Limitations runs from date of loan.  (C. C., 1818, 1912.  C. C. P., 312, 339)  p. 82

 

Garrity, Owen,  Estate of.  Death, presumption of.  Enquiries made at a place from which supposed deceased party has emigrated, not material evidence.  (C. C. P., 1963)  p. 180

 

Glass, Julius,  Estate of, Devise, precatory words:  “To wife’s use and interest or those of children,” with power of disposition, wife takes absolutely.  (C. C., 1322-25)  p. 213

 

Halleck, Henry W.,  Estate of.  Claim against an executor’s estate, absolute at his death.  Such claim must allege, not only that there are unsettled accounts, but also, that there is a balance due from the deceased executor; otherwise distribution will not be delayed.  (C. C. P.,  1493)  p. 46

 

Hannigan, Hepsabeth,  Estate of.  Will.  Mental incapacity from alcoholism.  Undue influence need not be found to exist in such case.  (C. C., 1272.  C. C. P., 1312)  p. 135

 

Harrison, W. B.,  Estate of.  Succession.  Illegitimacy.  Illegitimate half brother by the father’s side, not an heir.  Illegitimate half sisters by the mother’s side, inherit.  Conflict between Sections 1387 and 1388 Civil Code; Section 1388 prevailing, under Sec. 4484, Pol. Code.  (Pol. C., 4484.  C. C., 1387-88)  p. 121

 

Haskell, Eliza,  Estate of.  Res Adjudicata.  Grant of letters; what is thereby adjudicated.  Heirs not  precluded from denying that administrator, who received letters, on an allegation that he was husband of deceased, is husband and as such, heir, there being no contest to work an estoppel at the time of the grant of letters.  (C. C. P., 1365) p. 204

 

Hinckley, William C., Estate of.  1---Bequest in trust failing by reason of death of beneficiary.  Expenses of trustees to be paid them.

  2—Jurisdiction of Probate Court to interpret a devise in trust, and decide as to the legality of trust and the parties entitled, and distribute accordingly.

 

Distribution may be made of the interest of estate in mortgaged property, subject to the mortgage, all parties acquiescing, and the mortgage creditor releasing remaining estate.  A devise in trust coupled with power to alienate is not a perpetuity.  No uncertainty in a devise to trustees for “beneficence and charity,”

  Limitation of Sec. 1313, C. C., means one-third gross, not net value of estate.  Trustee’s purchases of claim already existing against the fund, held to be proper.  (C. C., 1313,  C. C. P., 1665,1678.  Constitution, (old) Art. XI, Sec. 16; (new) Art. XX, Sec.9) p. 189

 

Hite, Ormsby, Estate of.  Assignee of deceased heir entitled to have assigned property directly distributed to him in satisfaction of heir’s debt to him; but Court has no authority to order a sale, to pay such debt, the Court not having jurisdiction of deceased heir’s estate.  (C. C. P., 1678) p. 232

 

Howe, George L.,  Estate of.   Meretricious relations raise no presumption of marriage, even where parties, for temporary convenience, hold themselves out as husband and wife.  (C. C., 55.   C. C. P., 1678) p. 100

 

Imhaus, Louis,  Estate of.  Witness.  Discovery.  Examination under Sec. 1549,  C. C. P.  What facts may be elicited.  (C. C. P., 1459) p. 99

 

Johnson, George W.,  Estate of.  Will.  olographic.  Signature need not be a subscription.  (C. C., 1276-7.   C. C. P., 1309) p.  5

 

Keenan, John C.,  Estate of.  Account of executor.  Grounds for opening a settlement.

  Adoption.  Will. Statement in, styling “A. B., my adopted son,” prima facie evidence, and that such person is entitled to administer.  (C. C. P., 1365,1637,1962) p. 186

 

Kehoe, John,  Estate of.  Account; effect of settlement; not a judgment.  (C. C. P., 1637,1643) p. 127

 

Kidd, George W.,  Estate of.  Bond of Administrator; property pledged by decedent.  Held, that only the probable surplus over the debt should be considered in fixing bond.

(C. C. P., 1388) p. 239

 

Lacoste, Jean,  Estate of.  Administrator, loaning funds of estate; liable for any loss accruing in parting with them for any purpose other than their security.  (C. C., 2262) p. 67

 

Linehan, Patrick,  Estate of.  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, wife is heir to exclusion of such nephews or nieces; and the widow dying after title has vested in her, her children are entitled to succeed as direct distributes.  (C. C., 1386, 1403) p. 83

 

Linden, Irma,  Estate and Guardianship of.  Custody of person of a minor.  The father entitled, (the mother being dead,) subject, ver, to direction by the Court, (which may be incorporated in order), as to what is for the child’s interest.  An unsettled life and harsh disposition, as grounds for restricting the father’s control over his child.  (C.C., 197,213,246,251.  C. C. P., 1751, 1755) p. 215

 

Loeven, Emil,  Estate of.  Notice to creditors must be based on the value of the estate.  Where inventory shows exceeding $10,000 worth of property, a four months' notice, a nullity.  Executor bound by showing of value in inventory.  (C. C. P., 1443, 1490-91)   p. 203

 

Low, C. L.  Estate of.  Husband and wife, communications between, privileged, even after death of the other.  Inofficious will.  Undue influence by wife.  Advancement to heir.  Charge to Jury.  (C. C., 1272.  C. C. P., 1312, 1919, 1917, 1881)   p. 143

 

McCloud, James,  Estate of.  Autograph will, when testator died before passage of Act authorizing an olographic will, ineffectual.  The law at the date of death governs.  (C. C., 1375)  p.23

 

McCullough, John,  Estate of.  Will.  Signature to will other than olographic should be subscribed at the foot of the instrument.  When the signature precedes the final clause (appointing executor), the will is valid to the extent of all the precedes signature.  (C. C., 1276)  p. 76

 

McDonniel, John,  Estate of. Interpretation of phrase,  “issue of her body,” etc., as applied to first beneficiary, creates a fee in her, only when such is the clear intention of testator.  Shelley’s Case, rule in:  “Issue” not synonymous with “heirs,” within rule of Norris v. Hensley, 27 Cal. 439.  (C. C., 1329-1334)  p. 94

 

Marden, Mary J.,  Estate of.  Married woman.  Claim against her estate on mortgage to secure husband’s debt, ground for order of sale.  (C. C. P., 1493-1536)  p. 184

 

Marvin, C. B.,  Estate of.  1---Attorney’s fees payable by administrator in charge of estate, though incurred by an executor who has vacated  his trust;  2---Commissions.  Successive administrations.  Full commissions not allowable until close of administration;  3---Commissions on property partitioned in the District Court allowed only on net proceeds received by estate;  4---A will may be made poning a distribution in Probate Court and creating no trust other than that of executorship.  (C. C. P., 1616, 1618)  p. 163

 

Meyer, Marion,  Estate and Guardianship of.  Husband liable for support of insane wife, irrespective of the fact of her being possessed by ample means, when it appears that he has the ability to meet the demand.  (C. C., 174).  p. 178

 

Milliken T. J.,  Estate of.  Jurisdiction.  Residence as a jurisdictional requirement.  May be enquired into any time by direct proceeding for the purpose of revoking letters.  Facts showing residence.  (Pol.  C., 52.  C. C. P., 1294.)  p. 88

 

Mogan, A.  Estate of.  Specific devises; taxes and assessments upon.  Devisee should assume and pay them ultimately; but, pending administration, executor should pay them and be re-imbursed on distribution, when, if need be, he may have order of sale for the purpose.  (C. C. P., 1669)  p. 80

 

Mohlenhauer, Maria,  Estate and Guardianship of.  Support of a minor ward.  Guardian marries minor ward’s mother.  All three have estate; all three estates should contribute to ward’s support.  (C. C., 209)  p. 162

 

Molk, John H.,  Estate of.  Devise.  Precatory words,  “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,”  do not create a trust but estate is the wife’s absolutely.  (C. C., 1322) p. 212

 

Mumford, George H.,  Estate of.  Widow’s share in estate.  She takes one-half of community property as survivor—not as heir.  “My estate,” in husband’s will, means estate subject to his testamentary disposition.  A renunciation of “all claim to my estate except under this will,” is not a renunciation of widow’s half of community property.  (C. C. 1402) p. 133

 

Murphy, Mary,  Estate of.  Grant of letters of administration.  Non-resident executor has no right to nominate an administrator.  (C. C. P., 1365-9, 1379) p. 185

 

Murray, F. X.,  Estate of.  Administration, where the existence of any estate whatever is colorable only, denied, it being intended by the application to clothe a person with the trust so that he may be made defendant to a suit to quiet title’  (C. C. P., 1371) p. 208

 

Myers, Margaret M.,  Estate of.  Pleading.  An opposition to the probate of a will on the ground of menace, undue influence, etc., should disclose the acts constituting the improper conduct.  Will.  Extraneous documents merely referred to in a will do not require to be made part of probate records.  (C. C. P., 1312) p. 205

 

Neil, Thomas,  Estate of.  Bequest to an extinct organization.  A similar association organized subsequently to the vesting of a legacy by death of testator for  analogous purposes cannot take bequest conditioned, that if a certain organization has ceased to exist at the death of testator, the fund should be otherwise appropriated, the proposed beneficiary having become extinct.  (C. C., 1345) p. 79

 

Nunan, Jeffrey,  Estate of.  Right to administer.  Public Administrator’s right to administer, only in cases of intestacy.  In estates of testates, the Court has discretion.  (C. C. P., 1365) p. 288

 

O’Keefe,  Estate of.  Will.  Mental incapacity from alcoholism.  Opinions of experts,  Charge to Jury  p.  154

 

Osgood, A. O.,  Estate of.  Sale of real estate.  Sufficiency of notice.  First publication, June 19th; last, July 9th;  a good publication as for twenty-one days.  (C. C. P., 1547, 1554) p. 153

 

Otis James,  Estate of.  Sale of real estate.  Variation between written bid and order and notice of sale.  Purchaser, not entitled to have confirmation set aside and to be himself released.  (C. C. P., 1554) p. 222

 

Page, Thomas S.,  Estate of.  Claim, presentation of.  Action pending and verdict had in decedent’s lifetime; but no judgment entered until after death, when executors were substituted, appeal had, and final judgment, to be paid in course of administration, no claim having been presented,  Held, that objection should have been made in District Court; that it is too late now.  (C. C. P., 1502.) p. 61

 

Patton, Charles,  Estate of.  Marriage contract; acknowledgment, part of its execution.  Distribution.  Probate Court has a right to consider a properly executed marriage contract in determining manner of distributing estate.  Contract affecting final disposition of property as between husband and wife, lawful.  Husband and wife.  Separate estate.  Real property owned by either before marriage, separate estate, notwithstanding community funds may have been expended thereon; such expenditure, however, may be ground for a claim in favor of community estate.  Expenses of administration.  Assessed pro rata upon community and separate estate.  (C. C., 158-9, 162-3, 178-9.  C. C. P., 624, 645, 1665)  p. 241

 

Pfuelb, Margaretha,  Estate of.  Will.  “Devise” covers other property than real, notwithstanding its original meaning.  Stepson not such a relation as would, under Sec. 1310, C. C., prevent legacy from lapsing.  (C. C., 1310, 1331)  p. 38

 

Phinney, Arthur,  Estate of.  Devise of property subject, at death of testator, to a mortgage bearing interest.  Devisee entitled, under Sec. 1513, C. C. P., that the mortgage be paid out of moneys of the estate.  (C. C. P., 1513)  p. 239

 

Plaisance, Ida,  Estate of.  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 person to be awarded executorship.  (C. C. P.,  1350)  p. 117

 

Post, Cornelia,  Minor,  Estate and Guardianship of.  Investment of funds.  Guardian responsible for loss of funds only when he has deposited them in a bank known to be unsafe.  Where guardian loans funds imprudently and without security, it is his duty to assume loss.  (C. C., 2261)  p. 230

 

Radovich, Luco,  Estate of.  Legacy.  Demonstrative.  When a special fund is set apart by will to pay demonstrative legacies, the Court will not endanger the means of their payment by directing payment, out of such fund, of a legacy that may ultimately be satisfied from another source.  (C. C., 1357)  p. 118

 

Reck, Henry,   Estate of.  Homestead.  Property used in part for purposes other than a homestead, but included in declaration, cannot be set apart by decree.  Executor not allowed commissions on homestead property,  (C. C., 1263.  C. C. P., 1618)  p. 59

 

Ricaud, J. P.,  Estate of.  1---Costs.  A cost bill should be filed as in  civil cases for costs paid to persons other than officers of the Court.  On setting aside a homestead, appraisers, reporter, and interpreter should be paid out of estate;  2---Partial distribution.  Community property.  Widow entitled to apply for her share of community property, though her title is that of a survivor.  In that connection, heir includes widow as survivor.  (C. C. P., 1033, 1485, 1658)  p. 158

 

Rice, John D.,  Estate of.  Jurisdiction.  Recitals in decree of probate showing that jurisdictional notice has been given, where affidavits on file are defective but not antagonistic, can be attacked only by a showing that such recitals are untrue in point of fact, and further, that the Court has been imposed upon.  (C. C. P., 2010-11)  p. 183

 

Robie, A. H.,  Estate of.  Letters of administration.  Persons entitled.  Nominee of non-resident widow entitled, as against Public Administrator.  (C. C. P., 1365-69)  p. 226

 

Rondel, E. F.,  Estate of.  Homestead allotted by decree of Probate Court.  Court thereafter loses jurisdiction; and cannot order sale to pay mortgage lien on the lot.  The remedy must be by foreclosure in District Court.  (C. C. P., 1465, 1486) p. 70

 

Samuel, Michael J.,  Estate of.  Jurisdiction.  Residence inferred from acts of decedent.  His conflicting assertions as to his intention.  Where his election of residence was not sincere, but for a specious purpose, it must be disregarded.  (Pol. C., 52  C. C. P., 1294) p. 228

 

Sbarboro, Giovanni,  Estate of.  1---Legitimacy.   Conclusive presumption of, from uninterrupted intercourse of husband and wife.  Adoption.  Acts of a paramour in recognition of his paternity of the offspring of an adulterous wife, not deemed an adoption so as to entitle child to inherit from him;

  2---Limitation of one year to revoke probate.  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 instruction to file it as of Dec. 2; Held, to be in time.  The citation to executor need not issue forthwith; and the delivery to the Judge held to be sufficient filing.  (C. C., 193-5, 230.  C. C. P., 1327, 1333, 1707)  p. 255

 

Schroeder, H.  Estate of.  Order for sale of real estate.  Grounds of opposition.  The fact that there is a litigated claim held by estate against devisee, on which claim the debtor claims that there is nothing due, is no ground of opposition to granting order of sale.  It is not necessary to abide determination of the litigation.  Statute of Limitations.  The allowance of a claim stays the running of statute.  (C. C. P., 356, 363,1540) p.  7

 

Secchi, Minors,  Estate, and Guardianship of.  Account.  Moneys received by guardian here from a foreign source must be accounted for here, unless there is a positive showing that he has accounted for them in the foreign jurisdiction, the presumption being that the foreign court has permitted a transfer to the domicile of guardian and ward, to be administered here.  (C. C. P., 1773-74) p. 225

 

Selby, Thomas H., Estate of.  Claim.  Interest, when allowable.  The allowance of a claim by executor and Probate Judge does not make it a judgment in such sense as that it may draw interest.  It is not a judgment in any sense until finally ordered paid.  The true test as to interest on a claim is, whether or no, if decedent were alive, it would be interest bearing.  (C. C., 1920.  C. C. P., 1497, 1649) p. 125

 

Seligman, Louis,  Estate of.  Unreasonable delay in closing estate; administrator chargeable with interest.  (C. C., 2237) p.  8

 

Selna, Jr., Ubaldo,   Estate of.  Devise.  Succession.  A future contingent interest vests in beneficiary so as to be subject of succession.  Account of administrator cannot be settled until there is an inventory with appraisement on file.  (C. C., 678, 680, 688, 690, 693-5-0, 1384) p. 233

 

Sime, John,  Estate of.  Garnishment process served on executor.  Before distribution, a garnishment, unavailing.  (C. C. P., 717-18-19, 1666) p.100 

 

Stans, John H.,  Estate of.  Community property.  Insurance policy, the premiums being paid out of the earnings of husband, common property.  Bequest of interest on $4,000 by husband to wife, until she re-marries, is a claim on his separate estate, to be calculated from date of death until re-marriage.  (C. C., 164, 1366)  p. 5

 

Stott, William,  Estate of.  1---Convict, under sentence of life imprisonment, civilly dead, so that wife may be deemed a widow and entitled to take as legatee or devisee, where her widowhood is a condition of legacy or devise vesting;  2---Interest.  Compounded with annual rests, when executor is chargeable therewith for mingling estate's funds with his own;  3--- Attorney's fee disallowed executor, when incurred by him in his own behalf in litigating conflict with estate.  (C. C. P., 1616.  Pen. C., 674.  C. C., 2236-7)  p. 168

 

Stow, J. W.,  Estate of.  Grounds of revocation of letters.  Law as to filing account, directory merely.  If executors pay assessments on shares of stock, they do it at their peril.  Creditors or heirs may support them in so doing, but the true course is to sell the stock as perishable.  All these matters to be heard on settlement of accounts, not grounds for revoking letters summarily.  (C. C. P., 1522, 1628)  P. 97

 

Sweigert, Adam,  Estate of.  Distribution.  Before distribution, all claims by executor for his outlays must be paid.  He cannot have distribution of estate and still keep it subject to his lien.  (C. C. P., 1665)  p. 152

 

Taney, Patrick,  Estate of.  Will.  Signature.  Name of proposed testator written by another person not a witness and not in presence of witnesses:  Held, that testator should have called the attention of the witnesses to the fact that he had singed the document, and that it had been subscribed by him or by his authority.  (C. C., 1276)  p. 210

 

Taylor, R. D.,  Estate of.  Contempt, finding of; judgment of imprisonment of executor until he has paid over distributive shares of estate.  (C. C. P., 1209, 1721)  p. 160

 

Titcomb, A. H.,  Estate of.  Marriage.  Facts showing an actual marriage, though unaccompanied by any ceremony.  Homestead.  Where widow occupies homestead of a value greater than $5,000, she should, after return of inventory, pay rent for such excess.  Claim against insolvent estate.  Interest.  Administratrix  not allowed item, where she paid compound interest upon a claim against insolvent estate.  (C. C., 55-57-68.  C. C. P., 1474-86, 1494.  Statutes 1861, p. 637.)  p. 55

 

Tittel, E. A. G. C.,  Estate and Guardianship of.  Residence.  Jurisdiction of petition for letters.  Should be made in the county where proposed ward resides.  (Pol. C., 52.  C. C. P., 1294, 1747, 1763)  p. 97

 

Tittel, Frederica A.,  Estate of.  Inofficious will.  Mental incapacity.  Restraint.  Undue influence.  Fraudulent misrepresentation.  Delusion.  Charge to Jury.  (C. C. P., 1312, 1313, 1317)  p. 12

 

Tobin, Richard,  Estate of.  The Boys’ Roman Catholic Orphan Asylum at San Rafael, held to be a charitable society, and entitled to take a bequest.  (C. C., 1275, 1313)  p. 134

 

Walsh, John,  Estate of.  Revocation of letters of administration of Public Administrator on the grounds of failure to file inventory and to deposit funds in County Treasury as required by law.  (C. C. P., 1720, 1737) p. 251

 

Wardell, Ada,  Estate of.  Will.  Pretermission of illegitimate child.  An illegitimate child inherits from her mother, if there be no mention of her in the will, as pretermitted offspring.  (C. C., 1307, 1387) p. 224

 

Webb, M. S.,  Estate of.  Insurance policy.  When premiums were paid by husband out of his earnings both before and after marriage, the proceeds, deemed part separate and part common property proportionally with premiums paid.  (C. C., 163-4) p. 93

 

Welch, John,  Estate of.  Evidence.  Witness.  A creditor can testify as to decedent’s indebtedness to him on hearing of application for letters.  (C. C. P., 1365, 1378, 1880) p. 202

 

White, J. B.,  Estate of.  Will, conditional, to be valid in case of death on a particular voyage, a nullity on returning therefrom.   (C. C., 1281)  p. 157

 

Whitmore, H. M.,   Estate of.  1—Res Adjudicata.  Claim.  Facts showing that there has been no adjudication upon:  Allowance by one executor for contingent amount; before allowance by Judge, annual account filed, wherein the liability is stated as contingent; the account settled; another annual account silent as to claim, settled; a petition for sale of real estate granted, there being grounds for sale exclusive of claim and the question of claim reserved.  Held, that the proceedings were no bar to an application by heirs to be heard in opposition to claim;

   2---Contract to cut timber from Public Land, the title to which is in litigation with United States.  Such contract held to be legal, and a claim thereunder allowable.  Interpretation of certain clauses in contract.  (U. S. Statutes,  p. 1049, Sec. 5388.  C. C. P., 1493, 1636, 1647, 1650, 1657)  p. 103

 

Winslow, Edward,  Estate of.  Will.  Signature of witness only partially executed, as where the first name or initial has been written; the last name not appearing to have been traced (either in ink or pencil), the execution of the will held to be imperfect; probate denied.  (C. C., 1276) p. 124

 

Winters, J. W.,  Estate of.  Husband and wife.  Dealings between man and woman as husband and wife, such relationship being actually impossible (there being an undissolved marriage of the man and another woman), cannot be held to constitute a partnership.  First wife, entitled to half of community property.  (C. C., 55, 155, 1402, 2395) p. 131

 

Wright, Mary,  Estate of.  Bequest to religious corporation void under Sec. 1275, Civil Code.  (C. C., 1275) p. 213

 

Wyche, Mary,  Estate of.  Under the law in force (March, 1875), the Court has discretionary right to grant letters to nominee of grandmother of unmarried minor, in preference to creditor.  (C. C. P., 1365, 1379) p. 85

 

Yun, Yee,  Estate of.  Letters of administration with will annexed.  In cases of testacy, the selection of grantee of letters is within discretion of the Court.  Public Administrator being a public officer, preferred to a Chinaman, who has no intention to permanently reside here, and who is ignorant of our laws and language.  (C. C. P., 1350-51,  1379) p. 181

 

 

INDEX [GLOSSARY/EXPLANATORY]  Pages  |271-290|  |291-310|  |311-328|

 

Transcribed by Pat Seabolt & Sue Wood.

Proofread by Betty Vickroy.


© 2007-2008 Patricia Seabolt & Sue Wood.




 




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