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“Witnesseth: That the said party of the first part, in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, does by these presents give, grant, and confirm unto the said party of the second part, and to her heirs and assigns, forever, that certain lot, [here follows description of real estate,] together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversions, remainder and remainders, rents, issues, and profits thereof, to have and to hold all and singular the said premises, together with the appurtenances, unto the said party of the second part, and to her heirs and assigns, forever.

“In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.”

“MY DEAR ANNA: I have for a long time been thinking of executing this document. We all know life is uncertain, and we don't know the moment we may be called away. Both you and myself may live for many years to come, yet we know not the time; I therefore want you to know you are provided for under any circumstances. Now, I want to explain the particulars: This deed which I send you a copy of is all regularly made out and witnessed before a notary public. Nothing else necessary but to have it recorded; then it becomes your property, which can be done any moment, if necessary. My intention, however, is to provide for you while I live, the same as I always have done; and hereafter, if it should please God to call me away, you will have your own property to depend on, sufficient to make you independent while you live. I must now conclude, having no more to say, and am joined by Mr. Dixon in wishing you health and happiness. Your affectionate Bro.,

“N. SKERRETT.” A witness testified as follows:

“After Mr. Skerrett's death, myself and Capt. Lees examined his box, in which his deeds and other valuable papers were contained, to discover whether there was any other will than the one produced here. I did not see anything that had reference to that except that, and I found no paper purporting to be a will. I found in the drawer of his desk an envelope addressed to his sister, Anna, containing a letter and copy of deed to her. I found in the tin box before mentioned, in the lower part of the same desk, a deed from him to her acknowledged before a notary. This deed was in an envelope, indorsed in the liandwriting of Nicholas Skerrett, • Deed of Gift, Nicholas Skerrett to Anna Skerrett. Neither of these envelopes was sealed. [The witness is here shown the said instrument which was filed herein for probate, as aforesaid.] This is the paper which I found in the drawer of Mr. Skerrett's desk, inclosed in an envelope, addressed to his sister Anna. I have often seen him write and I know his handwriting. The whole of this instrument is in the handwriting of Nicholas Skerrett, and it is his signature subscribed at the end. The address on the envelope was also written by him."

It was also in evidence that the sister referred to, Anna J., was in indigent circumstances, and that the deceased had made remittances to her for her support. The deed of gift which was referred to was executed (except as to delivery) and was acknowledged; it was not delivered, but was found in a box of the deceased. A witness testified that he suggested to the deceased that he should send the deed to the sister, to which deceased replied: “Well, you know she will have it, and you know she will have abundance.'

The court found that the instrumeni (copy of deed and letter) was entirely written and signed by the hand of the deceased; that it was not dated, and was not a will; therefore the court refused its probate.

In the case presented in the appeal No. 9,735, the deed itself, acknowledged as a deed and witnessed, (not the copy and letter,) was offered for probate. The court found its execution by the deceased, in the presence of the two witnesses; that he declared the same to them to be his will; that they signed the same in his presence and at his request; and admitted the same to probate.

We are of opinion that the order in each case was erroneous. The deed proposed in No. 9,735 was a deed of gift, and contained no words of a testamentary character. It was invalid as a deed, because not delivered; it was not a will because it expressed no design to be other than a deed. The evidence was insufficient to show its execution as a will; it was not olographic, and the evidence was insufficient to show that the deceased declared to the witnesses that the paper was his will. The instrument proposed in No. 9,560, taken as an entirety, should have been admitted. It was written entirely by the hand of the deceased, it was signed by him, and a date appears at the commencement. Neither the copy of the deed nor the letter, taken by itself, constitutes a will; the one is not testamentary in its character, the other has no date; but taking them together as the deceased left them, forming one document, it is complete. The first part furnishes the date, and the latter the testamentary character. We think the following words clearly show an animus testandi, viz. :

“We all know life is uncertain, and we don't know the moment we may be called away.

I therefore want you to know you are provided for under any circumstances. * My intention is to provide for you while I live, the same as I have always done; and hereafter, if it should please God to call me away, you will have your own property to depend on, suflicient to make you independent while you live.”

Doubtless the deceased had it in his mind, when he executed the deed, to send it to his sister at some time, thus vesting the title in her in his life-time; but for some reason he retained it,-perhaps so that he could sell the property if he should desire,--but that he intended she should have the property upon his death, if not sold by him, is to us very clear. Such being the case, and the instrument being executed with the formalities required by law, it is entitled to be admitted to probate.

The orders and motions in both appeals are reversed, and the matters are remanded, with directions to the court below to refuse probate of the deed by itself, and to admit to probate the copy of deed and letter, being the instrument referred to as proposed in appeal No. 9,560.

*

We concur:

McKEE, J.; MORRISON, C. J.; THORNTON, J.; McKins

TRY, J.

HARRIGAN v. BOLTE. (No. 11,090.)

Filed October 9, 1885. APPEAL-NOTICE-SIGNATURE BY ATTORNEY.

Appeal dismissed, on the ground that the notice is not signed by the attorney of record, on authority of Prescott v. Salthouse, 53 Cal. 221. Department 2. Appeal from superior court, city and county of San Francisco.

R. P. Wright, for appellant; Severance, Truvers, & Hornbiower, being attorneys of record for defendant.

C. H. Parker, for respondent.

BY THE COURT. Motion to dismiss an appeal on the ground that the notice is not signed by the attorney of record. We do not consider the question an open one in this court. Appeal dismissed on the authority of Prescott v. Salthouse, 53 Cal. 221.

(2 Cal. Unrep. 547)

REYNOLDS v. REYNOLDS. (No. 8,849.)

Filed October 10, 1885 APPEAL-REVERSAL-RESTITUTION BY LOSING PARTY.

Where, on appeal, a judgment is reversed, the appellate court will not compel restitution by the losing party of money which was not paid after, or in consequence of, the judgment appealed from, but was paid in consequence of an order made prior to the judgment, which order was not appealed from. Department 2. Motion for order for restitution. Langhorne & Miller, for appellant. J. D. Sullivan and D. H. Whittemore, for respondent.

MYRICK, J. Motion for an order for the repayment of money under section 957, Code Civil Proc. When the case was before us on appeal from the judgment, (7 Pac. Rep. 480,) we reversed that part of the judgment which directed the payment of $1,000 counsel fees by the defendant to the attorneys for the plaintiff; the action being for a divorce. It does not appear, from the affidavits used on the motion, that the money was paid after, and in consequence of, the judgment appealed from. If the money was paid in consequence of an order made prior to the judgment, such order was not appealed from. Motion denied, and order staying remittitur vacated.

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THORNTON, J., (concurring.) I concur in the denial of the motion herein, on the ground that the motion authorized by section 957, Code Civil Procedure, is one against a party to the action, and not one, as this is, against the attorneys of a party.

(67 Cal. 582)
PELLIER v. GILLESPIE and others. (No. 7,790.)

Filed October 9, 1885.
1. SERVICE OF SUMMONS-AFFIDAVIT-RESIDENCE OF DEFENDANT.

Where affidavit of service of summons states that defendant was served in a certain county, the presumption is that he was a resident of such county. 2. MORTGAGE - FORECLOSURE - PERSONAL JUDGMENT AGAINST MORTGAGOR'S

GRANTEE.

A personal judgment against the grantee of a mortgagor is sufficiently sustained by an allegation in the complaint to foreclose the mortgage that such grantee covenanted and agreed to pay the mortgage debt and discharge the mortgage lien. In bank. Appeal from superior court, county of Santa Clara. The opinion in department, stating the facts, is reported in 4 Pac. Rep. 1137.

Houghton & Reynoids, for appellants.
J. R. Lowe and Rhodes & Barstow, for respondents.

MYRICK, J. When this cause was before the court in department, an opinion was filed as follows:

“The objection that the affidavit of service of summons is fatally defective, because it does not state that the appellant on whom the summons alone was served, and the defendant on whom a copy of the complaint was served with the summons, were residents of the same county, is overruled, on the authority of Calderwood v. Brooks, 28 Cal. 153. The allegation that appellant covenanted and agreed to pay the mortgage debt and discharge the mortgage lien is sufficient to sustain the judgment. There is a sufficient description of the premises.” 4 Pac. Rep. 1137.

After hearing by the court in bank, we see no cause for changing the views expressed in department. We will, however, add, as to the sufficiency of the description of the premises, that all reference to lot 2 and map may be omitted, and a description be found. Let the description as found in the mortgage and decree be slightly transposed, (lines and distances given as stated,) and the description may read thus: “Beginning at a point on the easterly line of San Pedro street 27 92-100 feet southerly from a point where the southerly line of the lands of the San Jose Independent Mill and Lumber Company strikes said easterly line of San Pedro street, and running from said point at right angles with said street to the westerly line of Market street; thence along the line of lands of Cresta, Reed, and San Jose Independent Mill and Lumber Company to said line of San Pedro street; and thence, along said line of San Pedro street, southerly 27 92-100 feet to place of beginning.” Can we say this description embraces no land, and the sheriff could place no one in possession of any premises ? Can we say the line back from Market street is on the same line approaching Market street ? We think not. The judgment is affirmed.

We concur:

MORRISON, C. J.; McKEE, J.; THORNTON, J.

McKinstry, J., (concurring.) I concur in the judgment. The mortgage and decree contain a good description.

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Treating the contract of the defendant, the San Jose Independent Mill & Lumber Company, as, in equity, and in view of section 726 of the Code of Civil Procedure, a contract to indemnify the mortgagor against the payment of any deficiency that might arise under a foreclosure and sale, it was an agreement of the benefits of which the mortgagee could avail himself upon the principle of subrogation. Biddel v. Brizzolara, 64 Cal. 354.

I agree the affidavit of service was sufficient.

I concur: Ross, J.

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