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the new writ, if issued at all, must be made returnable before the Supreme Court in banc, where alone rests an authority superior to that of the District Court of Appeal, and where alone its decisions can with any propriety be corrected or reviewed.

Entertaining these views, I very reluctantly issued the writ in this case, making it returnable before myself, but upon an understanding with counsel for petitioner that, unless the court would consent to hear the mat. ter, the proceeding would necessarily be dismissed. My associates having, upon due consideration of the matter declined to order a hearing of the petition before the whole court, the writ was discharged, and the prisoner remanded.

(6 Cal. App. 52) FAIRCHILD v. WHITMORE. (Civ. 343.) (Court of Appeal, First District, California. June 25, 1907. Rehearing Denied by


Defendant, seeking to defeat a claim of an attorney for services on the theory that the services were rendered for a corporation, may show in evidence that the attorney had filed claim for the services rendered against the corporation, which was insolvent.

Appeal from Superior Court, Alameda County; S. P. Hall, Judge.

Action by C. H. Fairchild against Welles Whitmore. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Welles Whitmore and M. C. Chapman, for appellant. William P. Hubbard, for respondent.

itself, however, was offered and read in evidence. The claim was admitted to meet this item of the bill of particulars, and to show that the appellant for this service had presented a claim against the insolvent corporation. It was respondent's theory that the services of appellant, for which the latter sought, by his counterclaim, to recover compensation, were rendered not for him, but for the Richards Pump Company, insolvent. This claim against that insolvent company, so far as that item was concerned, carried out this theory, and was clearly admissible.

It is also asserted that the court erred in overruling the objection of appellant to the testimony of C. H. Humphreys. This witness was an attorney at law. In answer to a hypothetical question he testified as to the value of the services rendered by appellant. This and other instances, in which it is claimed the trial court erred in admitting evidence, are without merit. The evidence was amply sufficient to support the verdict.

The bill of exceptions was originally settled upon stipulation of counsel by the judge before wliom the case was tried. Subsequently, upon motion under section 473, Code Civ. Proc., an amendment to the engrossed bill of exceptions was allowed and settled by the successor of the judge who presided at the trial. The judge who heard the cause was not requested to settle the amendment. It is the contention of the appellant that, until he was requested to do so and refused, his successor was without authority in the matter, and that the amendment must be disregarded. Code Civ. I'roc. $ 653. It is needless to pass on this question, for we have carefully examined the points discussed in the briefs without reference to the amendment, and from such examination we are satisfied that the judgment and order should be affirmed. It is so ordered.

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KERRIGAN, J. This is an action brought to recover upon a promissory note. The defendant in his answer admitted the execution of the note, and set up in defense a counterclaim for services performed as an attorney and counselor at law. The jury brought in a verdict for the plaintiff, upon which judgment was entered. This appea] is from the judgment and order denying de. fendant's motion for a new trial.

It is claimed that the trial court erroneously admitted in evidence a certified copy of the claim of the defendant presented to the referee in the matter of the Richards Pump Company, an insolvent debtor. Among other items of services contained in this claim is the following: “Also services and preparation of papers in removal of two directors of said company" (Richards Pump Company). The appellant supported by his own testimony all the items of his bill of particulars, except one, which reads: "Feb. 5, 1901, assisting Wm. P. Hubbard in removing John J. Meyers and C. H. Humphreys as directors of the Richards Pump Company, and electing C. H. Fairchild and H. J. Piersol in their place, $50." This bill of particulars

(6 Cal. App. 44) In re WELCH'S WILL (Civ. 323.) (Court of Appeal, First District, California. June 24, 1907. Rehearing Denied July 24, 1907; Denied by Supreme Court


In determining the question of the sufficiency of the evidence of contestant in a will contest to require the submission of the case to the jury, the court must concede to the jury the right, not only to regard all the testimony of contestant as true, but to draw all reasonable inferences therefrom, and, where the evidence so considered is susceptible of two constructions, contestant is entitled to have the case go to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, 88 769, 773.] 2. SAME-UNDUE INFLUENCE.

Undue influence to avoid a will is the use, by one in whom a confidence is reposed by another, of such confidence for the purpose of obtaining an unfair advantage of the weakness

of the mind of the latter or of his necessities or able inference fairly deducible, and every distress.

favorable presumption fairly arising, from [Ed. Note. -For cases in point, see Cent. Dig.

the evidence produced, must be considered vol. 49, Wills, $$ 375, 383.]

as facts proved in favor of the contestants. 3. SAME-CONFIDENTIAL RELATIONS. In a suit to set aside a will on the ground

Where evidence is fairly susceptible of two of undue influence exercised by the wife of the constructions, or if either of several infertestator, the confidential relation between hus

ences may reasonably be made, the court band and wife, though not raising a' presump

must take the view most favorable to the tion of undue influence, is important in weighing the evidence in the case.

contestants. All the evidence in favor of [Ed. Vote.-For cases in point, see Cent. Dig. | the contestants must be taken as true, and, vol. 49, Wills, $ 383.]

if contradictory evidence has been given, it 4. SAME-EVIDENCE-QUESTION FOR JURY. must be disregarded. If there is any subIn a suit to set aside a will on the ground

stantial evidence tending to prove in favor of of undue influence, evidence examined, and held to require the submission to the jury of the

contestants all the facts necessary to make out question of undue influence.

their case, they are entitled to have the case [Ed. Note.--For cases in point, see Cent. Dig. go to the jury for a verdict on the merits." vo). 49, Wills, $ 769.]

With the above rule in mind, we will briefly Appeal from Superior Court, Santa Cruz examine the evidence tending to prove that County; Lucas F. Smith, Judge.

the will was procured by undue influence, or, Petition by Mary Ellen Aston for the rey- in other words, that it was not the free and ocation of the probate of the will of Rich- voluntary act of the deceased. ard R. Welch, deceased, in which Bridget

Undue influence has been defined by our Welch, the widow, appeared and filed an- court to be the use, by one in whom a conswer. From a judgment of nonsuit, petition- fidence is reposed by another, who holds a er appeals. Reversed.

real or apparent authority over him, of such

confidence or authority for the purpose of H. C. Wyckoff, for appellant. Charles B. Younger, Jr., and David F. Maher, for re

obtaining an unfair advantage of his weakspondent.

ness of mind, or of his necessities or distress.

Dolliver v. Dolliver, 94 Cal. 616, 30 Pac. 4. COOPER, P. J. The last will of deceased It must be borne in mind that the undue was admitted to probate, and Bridget Welch, influence is alleged to have been by the wife, the widow, appointed executrix thereof. The and the relation between husband and wife appellant, Mary Ellen Aston, the daughter of is confidential. While such confidential rethe deceased and the executrix, within the lation does not, perhaps, of itself, in this state year filed a petition for the revocation of the raise a presumption of undue influence in reprobate of the will upon the ground of un- gard to making a will, yet it is important due influence. The respondent, who is the in weighing the evidence in all cases of this mother of appellant, filed an answer to the

character. In fact, it has been held in some petition, denying the allegations as to undue jurisdictions that there is a presumption of influence. The case came on for trial upon undue influence in such cases when such such issue before the court with a jury.

confidential relations exist. The question After appellant had introduced her testimo- as to the boundary of legitimate influence ny and rested, respondent made a motion must be determined by consideration of the for a nonsuit, which was granted, and judg- relation between the parties, the character, ment accordingly entered. The appeal is strength, and condition of each of them, the from the judgment, and presents the ques

circumstances of the case, and the application as to the ruling on the nonsuit.

tion of sound practical sense to the facts of The case presented is entirely different each given case. The mental and physical from one in which the lower court has grant- condition of the testator, and the provisions ed a new trial on conflicting or insufficient of the will itself, may be considered. The evidence. Here the jury was a part of the deceased was 70 years old, and during the machinery of the trial. It was, in the first last few years of his life was in the habit place, subject to the revisory power of the of using intoxicating liquors at times to excourt, the judge of the facts. The evidence in- cess. He had been in feeble health for some troduced must, for the purposes of this motion, time. The respondent appears to have been be all considered as true. It must be given the the stronger of the two, either mentally or greatest probative force to which, according by force of her will power. She took charge to the law of evidence, it is fairly entitled. of the money of the community, deposited it We must concede to the jury the right, not in banks in ber own name, and superintendonly to regard all the testimony as absolutely ed the affairs generally. The appellant was true, but to draw all reasonable inferences the only living child, and there were no therefrom. In Estate of Arnold, 147 Cal. 583, grandchildren. She married Joseph F. As82 Pac. 252, the rule is thus stated: "In de. ton in December, 1882, and has ever since termining whether or not, in a proceeding to lived with him, but they have no children. contest a will, the evidence produced by the The mother opposed the marriage of her Contestants is sufficient to require the sub- daughter to Aston, would not consent to it, mission of the case to the jury, the same and stated that, if she married Aston, he rules apply as in civil cases. Every favor- would never get any of the property. Sbe never forgave the daughter for marrying As- she answered, “I certainly was when that ton. The deceased was always friendly with will was signed.” When asked by her own his daughter, and often visited her at her attorney (Mr. Maher) in cross-examination to home. The will gives the property-quite a state what occurred at the time of making little estate-to the respondent for life, mak- the will, the respondent answered: "You drew ing her executrix without bonds, with re- the will out and he signed it; after he signed mainder to appellant for life, and, in case you read it twice to him, and he asked me, of hier death without issue, "all of my said Are you satisfied with the will, mamma?'property shall go to the heirs of my said be- When respondent was asked if she knew beloved wife." Deceased did not know his forehand what was going to be put in thi wife's relatives, who they were, nor where will, she said she never heard that he was gothey resided. The appellant testified that ing to make a will till three hours before. "I during their married life and up to the was as innocent as a child in the cradie, he time of her father's death her mother con- said when Mr. Maher read it." When asker! trolled him in everything; that her mother if she suggested leaving the property to her insisted upon, and her father did, turn over relatives, she answered, “Oh, no, no, no; I all the money he earned and all rents to her; never spoke to him about them.” If deceasthat her mother told him what to do and ed never saw any of his wife's relatives, and how to do it; 'that some four or five years she never spoke to him about them, or about before his death he sold some property in making the will, it might have appeared to Santa Cruz for about $2,400, and her mother the jury a little singular that the fee of the deposited the money in the Pajaro Valley property should be left to her relatives. The Bank in her name; that on an occasion will was made three days before the death when visiting her father, and when her fa

01 P.-22

of the deceased. The witness Mary Aston testher was kissing her, the mother told her tified that the deceased and respondent stopthat she came too often; that her mother ped at her place of business in the afternooi would always be present when she visited after the will had been made, and respondent her father; that her father bad blood rela

told witness about the will having been made tions living; and that two of his nephews and "he had it fixed to suit her." visited him at his home in Watsonville. The The witness Faustino testified that Mr. and witness Romine, who was a tenant of de

Mrs. Welch stopped at his store about 5 ceased, testified that, when he paid his rent, o'clock in the afternoon of the day the will the respondent would reach over and take it,

was drawn; that deceased came up to the and on one occasion she grabbed the money

counter, put his elbow on the counter, and from deceased; that respondent would al

laid his head on his hand, and witness gave ways direct how the work should be done

him a little wine; that Mrs. Welch told witon the place; that deceased asked the wit

ness about the will having been made, and ness at one time when deceased sat down to

said, "I got the will just the way I wanted rest not to mention it to respondent; that it.'' on one occasion, when deceased borrowed

The appellant testified that she was at the $3 of witness, he asked him not to mention

home of her parents on the evening of Januit to respondent. The witness McCallum tes

ary 27th, just after the will had been made; tified that a short time before the death of

that nothing was said to her about a will in deceased the respondent told witness that she was very anxious that her husband

any way; that she heard a part of an expresshould make his will, and in the same con

sion made by her mother to her father which

was "don't tell"; that she did not hear of Versation the respondent said she did not wish Mr. Aston to get a dollar. The witness

the making of the will until after the death of Murphy testified that she was at the Welch

her father, which occurred January 30, 1901. home a short time before his death; that

About three weeks before his death the Mrs. Welch said he was in a very bad condi

testator had a serious attack of neuralgia of tion, and expressed a desire that he should

the heart, and could not put on his shoes

without assistance. Yo disinterested party arrange his business; that in the conversation Mrs. Welch said she wanted control of

appears to have been present when the will the property during her life, and then to

was executed. Deceased does not appear to hare it go to her daughter, and then to her

have had any but the most affectionate feel people, and used the expression "If it is not

ing for his daughter. While feeble and near that way, I will not have it;" that on one

dissolution, lie went with the respondent to occasion deceased came into the home of the lawyer's office, and was with her and in witness, and asked for a pen and ink, stat- her presence when the will was executed. ing that he wanted to sign a note for a sa- Who can say as matter of law that the ac loon bill, but did not want his wife to know

was the free and voluntary act of decease, about it.

under the circumstances? When the respondRespondent was called as a witness for ent said that the will was as she desired, appellant, and testified that deceased never might not the jury infer and find from all the SW any of her relations, and that none of evidence that it was in fact the will of re. them ever visited at her home. When asked spondent, acting through the signature of a if sile was present when the will was signed, feeble, dying old man? In a case like thi

where a will is made by one in feeble health. just before death, in the hearing and presence of a person of dominating mind, and to suit the interests and purposes of such person, courts and juries should carefully scrutinize every act and circumstance in connection with the matter. In many cases it is utterly impossible to prove the exercise of the influence directly upon the testamentary act, but this is not necessary. The question in all cases is as to whether or not such influence produced the act. It may have been the result of a long course of conduct, fear, or persuasio. A party exerting such influence would not take along witnesses to prove that she had no such influence. Such intluence has been exerted in many cases where the party whose influence produced the act was not present at the making of the will. The fact that such a party was present, both in going to, remaining in, and returning from the lawyer's office. is certainly a very potent circumstance.

In Estate of Arnold, supra, the order granting a nonsuit in a will contest was reversed, although the facts and circumstances tending to show undue influence were not of a convincing nature. The court said: “There were circumstances from which it might have been inferred that Leonard had, by these means, obtained great control over the mind and actions of the testatrix, and that he was acting in bad faith. for the purpose of procuring the new will to be made in order to supplant Rosenheim and promote bis own advantage. Some of the evidence, it is true, was capable of a different construction, and there was little, if any, direct evidence as to the motives of Leonard, or as to the actual operation of the undue influence. If a jury bad, upon the evidence given, found in favor of the disputed will, we might not be disposed to disturb the verdict. Questions involving motives, and inferences to be deduced from circumstances, are, within reilsonable bounds, exclusively within the province of the jury, or the trial court when sitting without a jury, and, under the rules regarding the granting of a nonsuit, they must all be resolved so far as possible in favor of contestants. It would not be unreasonable to conclude upon all the facts and evidence before the jury that the will in question was not the natural result of the uncontrolled will of Mrs. Arnold, but the direct result of the fears exerted, false beliefs engendered, and sinister influences exercised over her to that end by William H. Leonard. In such (ase it is error to grant a nonsuit.” It certainly would not be unreasonable to conclude, upon all the facts and circumstances before the jury in this case, that the will was not the natural result of the uncontrolled mind of the old man Welch. In Estate of Tibbetts, 137 Cal. 123, 69 Pac. 978, the verdict of a jury, finding that the will of deceased was the result of undue influence, was up

held. In that case the mother of the testatrix was unfriendly to the contestant, and went with her daughter, the testatrix, to have the will signed, but gave no directions as to its terms at the time. The court said: "After mature consideration of the case at bar we have reached the conclusion that the evidence was not so entirely insufficient to support the finding of undue influence as to warrant us in disturbing the verdict." In Estate of Kendrick, 130 Cal. 360, 62 Pac. 603, it was held that the evidence was sufficient to uphold the verdict of the jury that the will was procured by undue influence. The evidence did not show that the influence was exerted at the very time of the making of the will, but that whispered conversations. had occurred between the deceased and her niece. The court, after referring to the facts, and the fact that at the conclusion of the conversations the deceased seemed to have put herself unreservedly in the hands of her niece, and to have been dominated by her, said: "These facts and circumstances, taken with the admittedly mental and physical condition of the testatrix, we think must be held sufficient to justify the verdict of the jury."

In the case at bar the facts that the deceased was feeble, and somewhat addicted to the use of intoxicating liquor; that he was dominated by the respondent; that he made his will just three days before he died; that respondent was with him at the time and the will was made in her favor; that respondent said to third parties that she had the will to suit her; that deceased left the fee of the real estate to his wife's relatives, whom he did not know and had never seen, to the exclusion not only of his own relatives but to the exclusion of his only daughter; that respondent entertained a strong dislike to the husband of the daughter; that deceased had always been friendly to the daughter and her husband; that the daughter was not spoken to about the will, and respondent desired to keep the fact of its having been made from the daughter-in our opinion would amply sustain a verdict finding that the will was produced by undue influence.

The judgment is reversed.

We concur: HALL, J.; KERRIGAN, J.

(6 Cal. App. 67) GABLE et al. V. PAGE et al. (Civ. 324.) (Court of Appeal, Second District, California. June 26, 1907. Rehearing Denied by Su

preme Court Aug. 23, 1907.) 1. APPEAL-TIME OF TAKING.

An appeal from a judgment taken 10 months after entry thereof cannot be considered.

(Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $ 1879.] 2. JUDGMENT--RES JUDICATA.

The validity of the trust cannot be questioned by defendants in an action to quiet title

to laud held by plaintiff under a trust estab- individual indebtedness may, in the absence of a lished in a prior action brought by one to whom plea of nonjoinder by defendant, be supported defendants are privies.

by evidence of a partnership indebtedness, de

fendant being one of the partners. Appeal from Superior Court, Tulare Coun

[Ed. Note.--For cases in point, see Cent. Dig. ty; W. B. Wallace, Judge.

vol. 39, Pleading, $ 1237.] Action by Mary A. Gable, trustee, and

Appeal from Superior Court, City and others, against Elias C. Page and others.

County of San Francisco; J. C. B. Hebbard, From a judgment for plaintiff and from an

Judge. order denying a new trial, defendants ap

Action by Baker & Hamilton against G. W. peal. Dismissed and affirmed.

Lambert. From a judgment for defendant E. T. Cosper, for appellants. T. E. Clark, and an order denying a new trial, plaintiff for respondents.

appeals. Reversed.

Page, McCutchen & Knight, for appellant. SILAW, J. This is an action to quiet | William H. Johnson, for respondent. plaintiff's title to lands which she holds under a trust established by a final judgment

COOPER, P. J. This is an appeal from a and decree rendered several years prior to

judgment in favor of defendant, and from the institution of this suit. The appeal from

an order denying the plaintiff's motion for the judgment herein was taken 10 months

a new trial. afier the entry thereof; hence (annot be con

The complaint contains the common counts, sidered. Hunter v. Milam, 133 Cal. 601, 63

alleging in various forms that the defendant Pac. 1079.

is indebted to the plaintiff in the sum of It is not urged that any errors of law oc

$575.28 for goods, wares, and merchandise, curred at the trial to which exception was

sold and delivered by plaintiff to defendant taken, nor are the findings attacked as be

at his special instance and request. Upon the ing unsupported by the evidence. Appel

trial the evidence showed that a partnership lants' argument is confined to an attack up

had existed between the defendant and one on the validity of the trust, the existence of

Lipsett. Plaintiff then offered testimony tendwhich it is conceded was found and adjudged

ing to show a sale of the goods and merby the court. Admitting its establishment

chandise to the partnership. The defendant by this adjudication, the point becomes one

objected to the offered testimony, on the of law to be considered upon an appeal from

ground that under the pleadings the proof the judgment only. Hunter v. Milam, supra;

of a partnership indebtedness was inadmisSharp v. Bowie, 142 Cal. 462, 76 Pac. 62.

sible, and the court sustained the objection. Thus considered the grounds upon which it

The question presented for decision is as is claimed the trust is void might properly

to whether the allegations of the complaint have been, and presumably were, urged in

as to an individual indebtedness can, in the the suit wherein it was made an issue. The

absence of any plea of nonjoinder by defendcourt there having, by its decree, established

ant, be supported by evidence of a partnerit, appellants, who are privies to the plain

ship indebtedness; the defendant being one tiff in that action, must be held bound by

of the partners. The precise question does such judgment. "The judgment may be

not appear to have been decided in this state, grossly unjust or erroneous, but the decision

and is an important one. We are of opinion of the court as to all issues involved in the

that the evidence was admissible. The in. action stands as a finality between the par

debtedness was the joint indebtedness of ties and their privies until set aside in some

both the partners. The complaint, therefore, mode recognized by law.” Page v. Garver

should have been against both, as they are (Cal.) 90 Pac. 481.

united in interest. Code Civ. Proc. $382. The appeal from the judgment is dismiss

The Code provides (Code Civ. Proc. $ 430) ed, and the order denying appellants' motion

that the defendant may demur to the comfor a new trial is attirmed.

plaint when it appears upon the face thereof

that there is defect of parties defendant. It We concur: ALLEN, P. J.; TAGGART, J.

does not appear upon the face of the complaint that there is such defect, and hence

the point could not have been raised by de(5 Cal. App. 708)

murrer. It is further provided (section 433) BAKER & HAMILTON v. LAMBERT. (Civ.

that in such case the objection may be taken 348.)

by answer. Then follows section 434, which (Court of Appeal, First District, California.

provides: "If no objection be taken, either June 11, 1907.)

by demurrer or answer, the defendant must PLEADING - EVIDENCE-ADMISSIBLE UNDER- be deemed to have waived the same." The NONJOINDER OF PARTIES—WAIVER. Under Code Civ. Proc. $ 433, providing that,

defendant, knowing the fact that his partner when a defect of parties defendant does not ap- was not joined, should have raised the ques: Dear from the complaint, objection must be tion of such nonjoinder by his answer, it taken by answer. and section 434, providing, if

he desired to rely upon it. The provisions no objection be taken, the defendant is deemed to have waived the same, the allegations of a

of the Code in regard to the matter are simcomplaint against a single defendant as to an | ple and easily followed. The object is to

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