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California unreported cases, being those determined in the Supreme Court and the District Courts of Appeal of the State of California, but not officially reported, with annotations showing their present value as authority (Volume 5) online

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Online LibraryCalifornia. Supreme CourtCalifornia unreported cases, being those determined in the Supreme Court and the District Courts of Appeal of the State of California, but not officially reported, with annotations showing their present value as authority (Volume 5) → online text (page 1 of 97)
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Of the San Francisco Bar
Author of "Inheritance Taxation," "Probate Law and Practice," etc.


^^ 1913



San Francisco

The Filmer Brothers Electrotype Compant

Typographers and Stereotypers







No. 15,818 ; March 20, 1895.

39 Pac. 858.

Actions — Consideration — Harmless Error. — Where two actions
bcLween the same parties were consolidated, and judgment rendered
tor plaintiff in one action, it is immaterial, on an appeal by defendant,
that the complaint in the other action did not state facts constituting
a cause of action.

Actions — Consolidation — Findings. — An action to enforce a con-
tract to convey land in consideration of plaintiff's doing certain grad-
ing, and an action to recover for the grading in three counts — First,
*.he reasonable value thereof; second, the price therefor under a writ-
ten contract; and, third, the value of extra grading — were consoli-
dated. The court found for defendant as to the first action, and for
plaintiff as to the second, on the second count, and for $350 "in
addition to said written contract." Held, that the finding of the
additional sum related to and was supported by either the first or
third count of the second action.

APPEAL from Superior Court, City and County of San
Francisco; Eugene E. Garber, Judge.

Two actions by Edward Adams against R. C. De Boom.
The actions were consolidated, and from a judgment for plain-
tiff, and an order denying a new trial, defendant appeals.

Gordon & Young for appellant; Andrew Craig and W. T.
Craig for respondent.

J (1)

2 Adams v. De Boom. [5 Cal. Unrep.]

VANCLIEF, C. — The plaintiff brought two actions against
the defendant on alleged causes of action assigned to him by
James McCoy (numbered in the superior court, respectively,
41,597 and 41,598), which, by stipulation of the parties, were
consolidated and tried together as one action. No. 41,598
was an action to enforce specific performance of a written
contract between defendant and McCoy, whereby the former,
on specified conditions, agreed to convey to the latter a lot
of land in the city of San Francisco. The consideration for
the conveyance was estimated at $700, to be paid as follows :
One-half ($350) by grading certain lots for defendant, as
specified in the agreement, and the balance in cash. It was
alleged in the complaint that the lots had been graded accord-
ing to the agreement, and that plaintiff, as assignee of the
contract, had tendered to defendant the balance of $350, and
demanded a deed for the lot, and that defendant had refused
to convey, etc. No. 41,597 was an action in three counts :
The first to recover $472.50 as the reasonable value of work
and labor done by McCoy for defendant in grading certain
lots at defendant's request. The second count differs from
the first only in that the work is alleged to have been done
under special agreement, whereby the defendant promised
to pay for the work at a certain price per day's work. The
third count is for extra work in furnishing and dumping
upon defendant's property, at his request, five thousand cubic
yards of "extra earth," the reasonable value of which was
ten cents per yard, amounting to $500. The court denied the
equitable relief (specific performance) asked in No. 41,598,
but found for plaintiff on the second count of the complaint
in No. 41,597 in full, $472.50, and, in addition thereto, found
$350 due plaintiff, but whether on the first or third count of
No. 41,597 does not clearly appear, though it does appear that
it was not for work done under the written contract of which
specific performance was sought by No. 41,598. Upon these
findings, judgment was rendered in favor of plaintiff for
$822.50. The defendant appeals from the judgment, and
from an order denying his motion for a new trial.

Counsel for appellant claims nothing on the appeal from
the order, but on the appeal from the judgment contends:
(1) That the complaint in No. 41,598 for specific i^erformance
does not state facts constituting a cause of action; and (2)
that the findiagrs do not support the judgment for a larger

[5 Cal. Unrep.] De Camp v. Bryson. 3

sum than $472.50 founded on the second count of No. 41,597,
and furnishes no foundation for the additional $350.

1. No relief was granted on the complaint in No. 41,598,
and therefore it is immaterial to appellant whether that com-
plaint states a cause of action or not.

2. That the finding of the additional $350 is a sufficient
finding that defendant was indebted to plaintiff in that sum
in addition to the sum of $472.50 is unquestionable; and
the only intelligible objection to it made by appellant is that
it is improperly founded on the complaint in No. 41,598.
This, however, is negatived by the finding itself, which states
that the indebtedness of $350 was for work and labor "in
addition to said written contract," on which alone the com-
plaint in No. 41,598 counted. Therefore, the finding in ques-
tion must be attributed to the complaint in No. 41,597, and
is sufficiently supported by either the first or the third count
of that complaint. I think the judgment and order should
be affirmed.

We concur: Haynes, C. ; Belcher, C.

PER CURIAM. — For the reasons given in the foregoing
opinion, the judgment and order are affirmed.


No. 19,493; March 20, 1895.

39 Pac. 861.

Appeal.— Wliere the Evidence is Conflicting on All the material
issues, an order granting a new trial by a judge who did not preside
at the trial will not be disturbed, unless there is a clear abuse of

APPEAL from Superior Court, Los Angeles County; J.
W. McKinley, Judge.

Action by Charles W. Bryson against C. E. De Camp.
There was a judgment for plaintiff, and from an order deny-
ing a new trial defendant appeals. Affirmed.

4 De Camp v. Bryson. [5 Cal. Unrep.]

Jay E. Hunter for appellant; J. T. Rearden and L. H.
Valentine for respondent.

SEARLS, C. — This is an action to recover $800 and interest
paid by the assignor of plaintiff to the defendant upon a
contract for the purchase of real estate from said defendant
by plaintiff's assignor, and which contract was alleged to have
been rescinded by said assignor by reason of a breach thereof
by defendant. Plaintiff had judgment for $871 and costs.
Defendant moved for a new trial, which was granted. The
appeal is by plaintiff from the order granting the new trial.

The cause was tried before Hon. W. P. Wade, judge of
department 3 of the superior court in and for the county of
Los Angeles, without a jury; written findings filed in favor
of plaintiff upon which judgment was entered. Hon. W. P.
Wade died before the motion for a new trial was perfected,
and the statement on such motion was settled and the motion
granted by Hon. J. W. McKinley, judge of department 6 of
the same court. The motion was based largely upon the in-
sufficiency of the evidence to support the findings. The
specifications of insufficiency are quite full and explicit. The
errors of law complained of did not warrant the interposition
of the court, and it is urged by appellant that as the court
granting the motion did not hear the testimony at the trial,
or have the witnesses before it, it was in no better position
to judge as to the propriety of granting the motion than this
court, and hence that on this appeal the question should be
passed upon precisely as though the motion for a new trial
were submitted here. The evidence involved a substantial
conflict upon nearly every important issue in the case, and
we are unable to say, upon a review of the whole case, that
the court below erred in granting the motion. The case was
a close one, upon the facts, and we confess some doubt as
to the propriety of the action of the court below; but, in the
\.^ry nature of things, something must be conceded to the
discretionary powers vested in courts of original jurisdiction.
This consideration suffices to resolve our doubt in favor of
the action of such court. The order appealed from should
be affirmed.

We concur: Haynes, C. ; Belcher, C.

PER CURIAM. — For the reasons given in the foregoing
opinion, the order appealed from is affirmed.

[5 Cal. Unrep.] In re Walkerley's Estate.


Appeal of DOUGHTY et al.

S. F. No. 6; April 2, 1895.

40 Pac. 13.

Appeal — Notice.— An Appeal will be Dismissed where notice
was not served on all parties interested.

APPEAL from Superior Court, Alameda County; W. E.
Greene, Judge.

Appeal by Mary S. Doughty and others in the matter of
the estate of William Walkerley, deceased. Dismissed.

Fox, Kellogg & Gray and B. B. NeM^man for appellants;
H. Firebaugh, Fred. E. Whitney and Rogers & Paterson for

PER CURIAM. — The order heretofore made, denying the
motion to dismiss three certain appeals of Mary S. Doughty
and others, is hereby vacated ; for, upon further examination
of the papers and records, it appears that notice of the first
appeal — that from the decree of distribution — was not served
upon all of the parties in interest, for that it was not served
upon F. E. Whitney, Esq., representing William Bacon and
others, and that, therefore, it should be dismissed. Also, as
to the appeals attempted to be taken from ''the order, judg-
ment, and decree settling the final account of executors," no
opposition being made to the motion to dismiss, and it being
conceded upon argument by appellants' attorney that the
said last-mentioned appeals are imperfect, and have been
abandoned, it is hereby ordered that each and all of said ap-
peals be, and the same are hereby, dismissed.

6 In RE Burdick's Estate, [5 Cal. Unrep.]


No. 15,869; April 2, 1895.
40 Pac. 35.

Executors — Appeal from Final Settlement. — An executor, wto

has appealed from all of a decree made in the final settlement and
distribution of the estate, except that part settling such executor's
account with the estate, cannot, on such appeal, object that the funds
in his hands were found to be coramuuity property, and distributed

Executors — Appeal. — A Distribution of a Part of a Devised
Estate to trustees, at the special request of the sole devisee, will not
be declared void on appeal because the record fails to show that such
trustees established a legal claim to the property.

Executors — Distribution. — The Probate Court has Jurisdiction
to declare certain property devised to testator's son to be commu-
nity property, and to distribute it to the wife, who is not a legatee
or devisee.

Community Property — Succession. — The Additional Eight Ac-
quired in community property by either the husband or the wife upon
the death of the other is acquired by inheritance.

Executors — Who may Appeal from Final Settlement. — Persons
claiming to be trustees of a devised estate, but who are neither
heirs, devisees, nor legatees, and who have presented no claim against
the estate, cannot appeal from a decree rendered in the final settle-
ment of the estate.

Executors. — An Appeal cannot be Taken from an Order of the
probate court refusing to postpone the final decree.

Community Property. — A Surviving Wife cannot be Deprived
of her rights in community property by an act of the husband sub-
jecting such property to the control of trustees for the use of others.

APPEAL from Superior Court, Alameda County; John
Ellsworth, Judge.

Appeals by the executor of the estate of Stephen Powell
Burdick, deceased, by A. W. Burdiek and A. M. Sutton as
trustees, and by A. W. Burdick individually, from a decree
rendered in the final settlement of the estate, distributing
one-half of the funds in the executor's hands to the wife as
her interest in the community property. Appeal of the trus-
tees dismissed, and decree affirmed.

*For subsequent opinion in bank, see 112 Cal. 387, 44 Pac. 734.

[5 Cal. Uurep.] In rb Buedick's Estate. 7

J. H. Craddock and R. S. Gray for appellants; darken
& Ross for respondent.

TE]\rPLE, J.— The executor of the ahove estate filed his
final acconnt with a petition for settlement and for a distribu-
tion of the estate, December 12, 1892. He reported that
he had in his hands, after payment of debts and expenses,
$1,855.41, from which he asked to be allowed attorney's fees
and accruing costs, and prayed that the balance be distrib-
uted to the parties entitled thereto; that the testator left
one child, Arthur W. Burdick, and a widow, Alice H. Bur-
dick; that by his will his entire estate was left to his son.
January 31, 1893, Alice H. Burdick filed her petition, claim-
ing that there was other property belonging to the estate,
and asked to have such property recovered for the estate.
August 30, 1893, A. W. Burdick and A. M. Sutton asked to
have the money in the hands of the executor distributed to
them as surviving trustees of a trust, or that the entire estate
be given to A. W. Burdick as sole legatee and devisee. The
petitions were submitted, and taken under advisement. July
20, 1893, Burdick and Sutton filed a more elaborate petition,
asking the court to distribute the money to them as trustees
October 9, 1893, the court denied the application of the
widow to compel the executor to include other property, and
ordered a distribution of the estate as community property.
One-half of the money, at the special request of A. W. Bur-
dick, was distributed to A. W. Burdick and A. M. Sutton,
trustees, and the other one-half to the widow. At that time
counsel for A. W. Burdick and A. M. Sutton, trustees, and
for A, W. Burdick individually, asked the court to suspend
entry of the order of distribution until the title of the fund
could be determined by proper action in a court of general
jurisdiction. This application was denied, and the court pro-
ceeded to settle the final account of the executor, and to dis-
tribute the property. Appeals are taken from this decree by
the executor, by A. W. Burdick and A. M. Sutton as trustees,
and by A. W. Burdick individually. The appeals are brought
here together, and by stipulation all use the same transcript,
and they have been argued and submitted as one appeal.

The executor states in his notice of appeal that he appeals
from the whole decree, "except so much of said decree as
settles the account of said executor, from which last-named

8 In re Burdick's Estate. [5 Cal. Unrep.]

portion he does not appeal." The executor claims that the
decree distributes the estate to strangers; that neither the
trustees nor the wife, as to community property, are heirs,
legatees, or devisees of S. P. Burdick, deceased, and those
claiming through them are the only persons to whom distribu-
tion can lawfully be made. The executor cannot, on this ap-
peal, claim that the court erroneously found the money to
be the property of the estate, rather than the property of
the trustee ; for the court, in settling the final account, ad-
judged that he had the amount in his hands belonging to the
estate, and from that part of the decree he does not appeal.

1. At first sight it would appear as though the court could
not distribute property to the trustees. They are not named
in the will, and could not, as such, be heirs. But the bill of
exceptions does not profess to state all the evidence, and, in
the absence of a contrary showing, we should presume that
they made out a claim through some one legally entitled. If
the statement that it was done at the special request of A.
W. Burdick shows that there was no other warrant for the
distribution, still I think it is not void. It shows that A.
W. Burdick was the person entitled to it, and, if the other
direction be void, still the distribution complies with the code.
It describes the property, and names the person entitled to it,
viz., A. W. Burdick. No other person could complain of it,
and he cannot, for it was done at his instance. The executor
questions the jurisdiction of the probate court to determine
the common property, or to distribute it to the widow. He
argues that the wife claims adversely to the estate, and not
as heir, legatee or devisee. The estate can only be dis-
tributed to such persons, and those who have acquired title
from them. He cites in support of his contention Estate of
Rowland, 74 Cal. 525, 5 Am. St. Rep. 464, 16 Pac. 315. It
was not decided in that case that the wife does not take one-
half the community property upon the death of her hus-
band as his heir, but that, when the community is dissolved
by the death of the wife, the probate court, while administer-
ing the estate of the wife, has no jurisdiction of the com-
munity property. The Civil Code declares that in such case
the community property goes to the husband without admin-
istration: Civ. Code, sec. 1401, Notwithstanding some un-
necessary language in Estate of Rowland, it was only held
that a controversy between the representative of the deceased

[5 Cal. Unrep.] In be Burdick's Estate.

wife and the surviving husband as to whether certain prop-
erty was common property or the separate property of the
wife could not be determined by the probate court. It would
not be necesssary to concede that the probate court has not
the jurisdiction claimed here, even if the wife does not take
as heir. The question, then, would be, Has the statute con-
ferred the jurisdiction, and was it within legislative power?
The jurisdiction is expressly conferred: Civ, Code, sec. 1402.
For thirty years before the adoption of our present constitu-
tion by the people the probate court had exercised the power
without question. The constitution gives probate jurisdic-
tion to the superior court. But I think, within the meaning
of our laws, both husband and wife take such additional right
as they acquire to the common property by the death of the
other by inheritance. The disposition to hesitate to accept
this conclusion does not arise from any ambiguity in our
statutes, which I think, and shall presently show, are very
clear upon the subject, but from the fact that during the
existence of the community the relation of the wife to the
property is, in some respects, quite different from that of a
mere heir apparent. She had rights with reference to it
which the courts will interfere to protect, and in case of the
dissolution of the community by divorce her right to one-half
the property immediately attaches, subject to the power of
the divorce court to deprive her of it for her delinquency.
But these statutory provisions do not show that the addi-
tional right which she acquires upon the death of her husband
is not as heir, and the code seems quite clear upon the sub-
ject. Section 1334 of the Civil Code reads as follows: "A
testamentary disposition to 'heirs,' 'relations,' 'representa-
tives,' 'legal representatives,' or 'personal representatives,'
or 'family,' 'issue,' 'descendants,' 'nearest' or 'next of kin'
of any person, without other words of qualification, and when
the terms are used as words of donation and not of limita-
tion, vests the property in those who would be entitled to
succeed to the property of such person, according to the pro-
visions of the title on succession in this code." Section 1383
defines "succession": "Succession is the coming in of an-
other to take the property of one who dies without disposing
of it by will." The next section shows that the person tak-
ing by succession is an heir, and that his right is subject to
the control of the probate court and the possession of the ad-

10 In RE Burdick's Estate. [5 Cal. Unrep.]

ministrator. Certain provisions then follow in regard to suc-
cession, down to section 1400, which is as follows: "The pro-
visions of the preceding sections of this title as to the inherit-
ance of the husband and wife from each other apply only
to the separate property of the decedents." The next sec-
tion provides for the succession to the community property
in case of the dissolution of the community by the death of
the wife. Section 1402 provides for the succession in the case
of the death of the husband. It is as follows: "Upon the
death of the husband, one-half of the community property
goes to the surviving wife and the other half is subject to
the testamentary disposition of the husband, and in the ab-
sence of such disposition goes to his descendants, equally,
if such descendants are in the same degree of kindred to the
decedent ; otherwise, according to the right of representation ;
and, in the absence of both such disposition and such de-
scendants, is subject to distribution in the same manner as the
separate property of the husband. In the case of the dis-
solution of the community by the death of the husband the
entire community property is equally subject to his debts, the
family allowance, and the charges and expenses of adminis-
tration." The sections following provide for other cases of
succession, and the heading of the title is "Succession." The
statute therefore indicates very plainly that the wife acquires
her right of absolute property in one-half of the community
property, upon the death of her husband, by inheritance.
Nor does this conclusion narrow or in any way limit the
views which have hitherto prevailed in regard to the rights
of the wife with reference to the community property during
the life of her husband. From what has already been said,
it is quite obvious that the appeal of the trustees must be dis-
missed. They are not named in the will, could not be heirs,
and have presented no claim against the estate. Nor do they
show any right acquired from heir, legatee, or devisee. They
are not, and could not have been, aggrieved persons. The
order refusing to postpone the final decree is not appealable.
Indeed, I do not now think of any order made in the course
of the administration from which these trustees could appeal.
Arthur W. Burdick, as devisee or heir, was not aggrieved be-
cause the court did not distribute the money to the trustees,
or because the court erroneously distributed it as part of the
estate of S. P. Burdick. On the hearing, Arthur W. Burdick

[5 Cal. Unrep.] Bank of Ukiah v. Gibson et al. 11

announced through his counsel that he claimed nothing as
devisee. Nor has such claim been made on this appeal. But,
waiving this, and supposing appellant here contending that
the court erred in holding that the property was community
property, but should have decided that it was the separate
property of S. P. Burdick, deceased, and that, therefore, he
was entitled to the whole of it as sole legatee and devisee,
there is nothing in the record upon which a decision in his
favor could be based. The bill of exceptions does not pur-
port to state all the evidence taken, and the decision may
have been fully sustained by evidence not brought up. But,
conceding that all the evidence is there set out, the conclusion
of the court is correct. There is no evidence tending to show
that any property was the separate property of S. P. Bur-
dick, unless it was converted into such by the creation of the
trust set out in the petition of the trustees. Conceding that
the money there invested was community property, as we
must presume it was, we have no difficulty in determining that
the surviving wife could not be deprived of her rights with
reference to it by any such device. The appeal of the trustees
is dismissed, and as to the other appellant the decree is af-

We concur: Henshaw, J.; McFarland, J.


No. 16,662; April 3, 1895.

39 Pac. 1069.

Chattel Mortgage on Livestock — Eecord as Notice. — Civil Code,
section 2955, provides for chattel mortgages on certain property; and
section 2957 provides that the record of such mortgages shall be
constructive notice, and that mortgages not recorded shall be void as
against subsequent creditors and purchasers. Held, that the act of
March 9, 1893, amending section 2955, so as to authorize mortgages
on sheep and neat cattle, does not entitle a mortgage on such stock,

Online LibraryCalifornia. Supreme CourtCalifornia unreported cases, being those determined in the Supreme Court and the District Courts of Appeal of the State of California, but not officially reported, with annotations showing their present value as authority (Volume 5) → online text (page 1 of 97)