KF. cS^ QJnrntll Cam ^ri;nal Htbracj) Cornell University Library KF 765.C56 Supplement to New probate law and practi 3 1924 018 803 357 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018803357 SUPPLEMENT TO NEW PEOBATE LAW AM PEACTICE WITH ANNOTATIONS AND FORMS rOR USE IN ALASKA., AEIZONA, CALIFOENIA, COLOEADO, IDAHO, KANSAS, MONTANA, NEVADA, NEW MEXICO, NOETH DAKOTA, OKLAHOMA, OEEGON, SOUTH DAKOTA, UTAH, WASHINGTON, AND WYOMING BY W. S.^CTEUECH of the san francisco bar Author of Church on Habeas Corpus, Annotated San Francisco Charter, Etc. VOLUME THREE BY CURTIS HILLYER SAIS" FRANCISCO BENDER-MOSS COMPANY LAW PUBLISHERS AND BOOKSELLERS 1914 13 75 /79 OOPYBIGHT, 1914 Br Bendek-Moss Company Williams Printing Company Independent Press Room PREFACE TO VOLUME THREE This volume, supplementary to Volumes One and Two of the original edition of Church's Probate, brings the subject down to October, 1914. It follows the same lines as Volumes One and Two. I desire to acknowledge my indebtedness to Mr. Henry Thompson, of the San Francisco Bar, for valuable assistance in the preparation of the manuscript. CURTIS HILLYBR. San Feancisco, December 1st, 1914. TABLE OF CASES A Pages Adler's Estate, In re, 52 Wash. 539, 100 Pac. 1024 2627 Agoure, Estate of, 165 Cal. 427, 132 Pae. 587 2301, 2310 Alaska etc. Co. v. Noyes, 64 Wash. 672, 117 Pae. 493, 495 2581, 2764 Alaska Treadwell Gold Mining Co. v. Cheny, 162 Fed. 593, 89 C. C. A. 357 2856 Alcorn v. Gieseke, 158 Cal. 396, 111 Pac. 98 2532 Aid's Estate v. Appling, 89 Kan. 840, 131 Pae. 569 2853 Alison V. Brian, 25 Okla. 520, 109 Pac. 935 2192 Allard, In re, — Mont. — , 141 Pac. 663 2251, 2272, 2273 Allen V. Shires, 47 Colo. 433, 107 Pac. 473 2336, 2383 Allen, Matter of, 162 Cal. 625, 124 Pac. 237 2220, 2235 Alton Merc. Co. v. Spindel, — Okla. — , 140 Pac. 1168. .2361, 2364, 2384 Alvater v. First Nat. Bank, 55 Colo. 528, 103 Pac. 379 2416, 2429 Amberson v. Candler, 17 N. Mex. 455, 130 Pac. 255 2309 Am. Bonding Co. v. People, 46 Colo. 394, 104 Pac. 83. . .2252, 2254, 2259 Am. Trust Co. v. Chitty, 36 Okla. 479, 129 Pac. 52 2409 Anderson v. Walter, 78 Kan. 781, 99 Pae. 270 2302 Anderson v. Anderson, — Utah — , 134 Pae. 558 2634 Anderson t. Hande, — Ariz. — , 141 Pac. 726 2609 Anderson v. McClellan, 54 Or. 206, 102 Pac. 1016 2238 Anderson v. Osborn, 62 Wash. 400, 114 Pac. 161 2425 Anderson's Estate, In re, 14 Ariz. 502, 131 Pac. 975 2021, 2627 Anthes v. Anthes, 21 Ida. 305, 121 Pac. 534 2482 Anthony, Estate of, 21 Cal. App. 157, 131 Pac. 96 2618, 2619, 2661 Antonioli's Estate, In re, 42 Mont. 219, 111 Pac. 1035 2847 Archer v. Harvey, 164 Cal. 274, 128 Pae. 410, 412 2560, 2562 Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534 2203, 2204 Auld V. Cathro, 20 N. Dak. 461 2749 Austin V. Chambers (Okla.) 2286 B Bacon v. Nichols, 47 Colo. 31, 105 Pac. 1083 2617, 2635 Bagley v. San Francisco, 19 Cal. App. 255, 125 Pac. 931, 933. .2450, 2455 Bailey's Estate, In re, 31 Nev. 377, 103 Pac. 233 2311, 2850 Barboza v. Pae. Portland Cement Co., 162 Cal. 36, 120 Pac. 767. . . 2326 Barett 's Estate, — Wyo. — , 138 Pac. 866 2307, 2312 V VI TABLE OP CASES. Pages Barette v. Whitney, 36 Utah 574, 106 Pac. 526, 528 2307, 2700, 2707, 2848 Barnes, Ex parte, 54 Or. 548, 104 Pac. 297 2226 Barnett v. Blackstone Coal and Milling Co., 35 Okla. 724, 131 Pac. 541 2848 Barnett v. Way, 29 Okla. 780, 119 Pac. 418 2210 Barr v. Southern Cal. Edison Co., 18 Cal. App. 273, 140 Pac. 47. . . 2486 Basler v. Sacramento G. & E. Co., 158 Cal. 514, 111 Pac. 530 2785 Baumann v. Kusian, 164 Cal. 582, 129 Pac. 986 2609, 2615 Bayer, In re, — Wash. — , 141 Pac. 684 2251, 2274, 2772 Bayley v. Bloom, 19 Cal. App. 255, 125 Pac. 931 2452 Bazziiro, Estate of, 161 Cal. 72, 118 Pac. 434 2342, 2449, 2459, 2495 Bean v. Pettengill, 57 Or. 22, 109 Pac. 805 2327 Bechtel v. Chase, 156 Cal. 707, 106 Pac. 81 2418, 2423 Beck V. Jackson, 23 Okla. 812, 101 Pac. 1109 2242 Beck's Estate, In re, 44 Moni. 561, 121 Pac. 786 2590 Beck's Estate, In re, — Wash. — , 146 Pac. 342. 2727 Becker, Estate of, 20 Cal. App. 513, 129 Pac. 795 2706 Bedford's Estate, In re, 158 Cal. 145, 110' Pac. 302... 2238, 2239, 2240 Beers, In re, — Wash. — , 139 Pac. 633 2195 Bell V. Wilson, 159 Cal. 57, 112 Pac. 1100 2556, 2557, 2558 Bemis v. Cookson, 160 Cal. 743, 118 Pac. 116 2633, 2634 Benner, Estate of, 155 Cal. 153, 99 Pac. 715 2565, 2624, 2627, 2847 Benton v. Benton, 78 Kan. 373, 104 Pac. 856 2651 Berry v. Howard, 26 S. Dak. 32 2488 Berthol, Estate of, 163 Cal. 343, 125 Pac. 750 2708, 2709 Besurck v. Churchhill Co., 22 Cal. App. 404, 132 Pac. 771 2337, 2490 Betcher v. Brady, 52 Wash. 644, 101 Pac. 222 2621 Bethany Hospital Co. v. Phillippi, 82 Kan. 64, 107 Pac. 530 2627 Bewley, In re, 167 Cal. 8, 138 Pac. 689 2190 Biokf ord v. Stewart, 55 Wash. 286, 104 Pac. 263 .' 2199 Billy, In re, 34 Okla. 120, 124 Pac. 608 2247 Blackbtirn's Estate, In re, 48 Mont. 179, 137 Pac. 381 2314 Blair v. Blair, 82 Kan. 464, 108 Pac. 827 2349, 2630, 2631 Blair v. Hazzard, 158 Cal. 721, 112 Pac. 298 2564 Blake, Estate of, 157 Cal. 448, 108 Pac. 287 2559, 2635, 2636, 2639, 2644, 2652, 2659, 2601 Bless V. Blizzard, 86 Kan. 230, 120 Pac. 351. 2612 Blood V. Muhn, 155 Cal. 228, 100 Pac. 694 , 2371, 2382 Board of Eegents v. Wilson, '54 Colo. 5l0, 131 Pac. 423 2692 Boaz V. Swinney, 79 Kan. 332, 99 Pac. 621 2196 Bohanan, In re, 37 Okla. 560, 133 Pac. 45 2248, 2251 Bohen v. Shoenfelt, 22 Okla. 94, 97 Pac. 556 2210 Bolen V. Superior Court,' 14 Ariz. 31, 123 Pac. 305 2854 Boliu's Estate, In re, 22 Okla. 851, 98 Pac. 934 2243 Bollinger v. Beacham, 81 Kan. 752, 106 Pac. 1094 2199 Bose, Estate of, 158 Cal. 428, 111 Pac. 258 2356 Boschker v. Van Beck, 19 N. Dak. 104 2446 TABLE OP OASES. Vll Pages Bottom's Estate, In, re,. 156 Cal. 129, 103 Pac. 849 2492, 2493, 2519, 2522 Bowman v. Sherrill, 59 Or. 603, 117 Pac. 1122 2374 Bowman v. Wade, 54 Or. 347, 103 Pac. 76 2272 Boye V. Andrews, 10 Cal. App. 491, 102 Pac. 551. .2489, 2617, 2690, 2769 Braff, Estate of, 166 Gal. 103, 134 Pac. 1140 2446 Breene v. Breeue, 51 Colo. 342, 117 Pac. 1002 2222, 2224 Brewer's Estate, In je, 156 Cal. 89, 103 Pac. 486 2565, 2858 Brigman v. Cheney, 27 Okla. 510, 112 Pac. 993 2234 Brooks V. Black, 22 Colo. App. 49, 123 Pac. 133 2360, 2373 Broome, Estate of, 162 . Cal. 258, 122 Pac. 470 2475, 2494, 2506, 2526, 2537 Browne v. Coleman, 62 Or. 454, 125 Pac. 280, 281.2283, 2286, 2455, 2456 Brown v. Mrst Nat. Bank, 49 Colo. 393, 113 Pac. 484, 486. . .2431, 2863 Brown v. Qninton,, 80 Kan. 44, 102 Pac. 242 2510 Brown v. Treasurer, 20 Haw. 41 2833 Brown v. Trent, 86 Okla. 239, 128 Pac. 895 2248 Brown v. Truax, 58 Or. 572, 115 Pac. 598 2409 Brown v. "Walley, 51 Colo. 166, 117 Pae. 138 2503 Brown's Estate v. Stair, — Colo. — , 136 Pac. 1005 2283, 2422 Brown's Estate, In re, 22 Okla. 216, 97 Pac. 613 2211 Brownell v. Yolo County Superior Court, 157 Cal. 703, 109 Pae. 91. 2535 Brownfield v. Holland, 63 Wash. 86, 114 Pac. 892 2405 Brownlee V. Veteran's Home, 22 Cal. App. 207, 133 Pac. 1158 2334 Brock V. Morris, — Kan. — , 132 Pac. 1185 2234 Bruok V. Morris, 90 Kan. 64, 132 Pac. 1186 2240 Bruner v. Sanders, 26 Okla. 673, 110 Pac. 730 2210 Bryan v. Palmer, 83 Kan. 298, 111 Pac. 443 2861 Bucholz V. Bucholz, 63 Wash. 213, 115 Pae. 90 2289 Buchser v. Buchser, 72 Wash. 675, 131 Pae. 193. . .2304, 2339, 2340, 2546 Budan, Estate of, 156 Cal. 230, 104 Pac. 442 2749 Budd, Estate of, 168 Cal.' 286, 135 Pae. 1131 2652, 2657, 2662, 2663, 2680, 2682, 2683, 2690 Bull V. Bal, 17 N. Mex. 460, 130 Pac. 252 .2317, 2459 Burdett v. Burdett, 26 Okla. 416, 109 Pac. 922 2202, 2394, 2395 Burk, Estate of, 66 Or. 252, 134 Pac. 11, 13 2620, 2730 Burner, Ex parte, 23 Cal. App. 637, 138 Pac. 90 2221 Burnett v. Jackson,, 27. Okla. 275, 111 Pac. 194 2858 Burnham's Will, In re, 24 Colo. App. 131, 134 Pac. 259. .2590, 2607, 2734 Burns v. Burns, 57 Kan. 19, 123 Pac. 721 2677 Butcher v. Butcher, 21 Colo. App. 416, 122 Pac. 400 . . 2607, 2701, 2732 Butler, In re, — Okla. — , 137 Pae. 673 2224 Butts V. McCleod, — Kan. — , 132 Pac. 1175 2448 c Cairns v. Donahey, 59 Wash. 130, 109 Pac. 335 2848 Campbell, Estate of, 12 Cal. App. 707, 108 Pac. 669, 670 2536 Candelaria v. Meera, — • N. Mex. — , 134 Pac. 832 2515 VUl TABLE OF CASES. Pages Capps V. Hensley, 22 Okla. 311, 100 Pao. 575 2248 Carey, Estate of, — Colo. — , 136 Pac. 1179. 2705, 2741 Carithers, Estate of, 156 Cal. 422, 105 Pao. 127 2602, 2743, 2748 Carl V. Northcott, 48 Colo. 47, 108 Pac. 994 2419 Carle T. Heller, 18 Cal. App. 757, 123 Pac. 815 2801 Carlin, In re, 19 Cal. App. 168, 124 Pac. 868 2788, 2791 Carlson v. Carlson, 10 Cal. App. 300, 101 Pac. 923. 2804 Carmen v. Knight, 85 Kan. 18, 116 Pac. 231 2593 Carotber's Estate, In re, 156 Cal. 422, 105 Pae. 127 2640, 2657, 2672, 2681, 2693, 2723 Carr v. Carr, 15 Cal. App. 480, 115 Pac. 261 2336, 2337, 2482 Carter v. Frahm, 31 S. Dak. 398.... 2558, 2580 Carter v. Pickett, 39 Okla. 144, 134 Pac. 440 2366, 2367 Carter v. "Waste, 159 Cal. 23, 112 Pac. 727 2.543, 2553, 2563 Castle Estate r. Hunneberg, 20 Haw. 123 2411 Chadbourne, Estate of, 15 Cal. App. 363, 114 Pac. 1012. .231,5, 2329, 2330 Chandler v. Probate Court, — Ida. — , 141 Pae. 637, 638 .... 2413, 2553 Chevallier, Estate of, 159 Cal. 161, 113 Pac. 130 2596, 2618, 2715, 2716, 2720, 2738, 2739, 2740, 2749, 2750, 2751, 2753, 2755 Chilsen v. Rogers, 91 Kan. 426, 137 Pac. 936 2626 Christensen v. Robinson, 35 Utah 67, 99 Pac. 459 2371 Christensen's Estate, In re, 15 Ida. 692, 99 Pac. 829 2849 Christiansen v. Talmage, — Or. — , 138 Pac. 453 2341, 2657 Christiansen v. Robinson, 35 Utah 67, 99 Pac. 459 2387 City of Spokane v. Costello, 57 Wash. 183, 106 Pac. 767 2423 Claiborne's Estate, In re, 158 Cal. 646, 112 Pao. 278.. 2642, 2651, 2684 Clapp V. Vatoher, 9 Cal. App. 462, 99 Pac. 549 2480 Clarke v. Baker, 76 Wash. 110, 135 Pac. 1028 2369, 2623 Clark V. Sup. Ct., 20 Cal. App. 305, 120 Pac. 1018 2236, 2237, 2238 Clark, Estate of, 13 Cal. App. 786, 110 Pac. 828 2213, 2552 Clavo V. Clavo, 10 Cal. App. 447, 102 Pac. 556 2786 Clifton V. Meuser, 79 Kan. 655, 100 Pac. 644 2430, 2862 Coachman v. Sims, 36 Okla. 536, 129 Pac. 845 2594 Coats V. Coats, 160 Cal. 671, 118 Pac. 441 2777 Cobb T. Stratton's Estate, — Colo. — , 138 Pac. 37 2676 Coburn v. Hynes, 161 Cal. 685, 120 Pao. 26 2261, 2262, 2275 Coburn, In re, 11 Cal. App. 604, 105 Pac. 924 2266 Coburn, In re, 165 Cal. 202, 131 Pac. 352 2267, 2268, 2269 Cochran v. Teehee, — Okla. — , 138 Pac. 563 2240 Colbert's Estate, In re, 44 Mont. 259, 119 Pac. 793... 2199, 2200, 2206 Colburn v. Latham (S. Dak.), 143 N. W. 278 2481 Colburn, Estate of, 164 Cal. 1, 127 Pac. 643 2534 Coleman, Estate of, 167 Cal. 241, 138 Pao. 992 2662 Collier v. Gannon, — Okla. — , 137 Pao. 1179 2431 Colton's Estate, In re, 164 Cal. 1, 127 Pao. 643 2536, 2550, 2554 Cone V. Eldridge, 51 Colo. 564, 119 Pao. 619 2407 TABLE OP CASES. IX Pages Connolly v. Probate Court, 25 Ida. 35, 136 Pac. 206, 208, 210, 2206, 2215, 2285, 2700 Connor v. Andrew, 61 Or. 483, 123 Pae. 48 2425 Converse v. Mix, 63 Wash. 318, 115 Pae. 306 2742 Cook's Estate, In re, 34 Nev. 217, 117 Pao. 31 2360, 2369, 2370 Cooley V. Miller, 156 Cal. 510, 105 Pac. 981 2559 Coolidge V. Austin, 22 Cal. App. 334, 134 Pac. 357 2804 Corcoran, Guardianship of, 3 Alas. 263 2255 Cordano v. Wright, 159 Cal. 610, 115 Pac. 227 2361, 2379 Cornell v. Burr (S. Dak.), 141 N. W. 1083 2620 Coryell's Estate, In re, 16 Ida. 201, 101 Pao. 724 2414, 2415, 2851 Couch V. Eddy, 35 Okla. 355, 129 Pae. 709..' 2378 Coulter V. People, 53 Colo. 40, 123 Pac. 648... 2711 County Court v. Watson, 51 Colo. 405, 118 Pac. 979 2843 Council Imp. Co. v. Draper, 16 Ida. 541, 102 Pae. 7 2335 Cowell, Estate of, 164 Cal. 636, 130 Pac. 209 2350, 2351, 2653, 2686, 2687 Cowles V. Lee, — Okla. — , 128 Pac. 688 2241, 2248 Cox v. Kansas City, 86 Kan. 298, 120 Pac. 553 2487, 2587 Gozza, In re, 163 Cal. 514, 126 Pac. 161 2189, 2190, 2191 Cramer v. McCann, 83 Kan. 719, 112 Pac. 832 2201, 2206 Crane v. Derrick, 157 Cal. 667, 109 Pac. 31 2262, 2420 Cree v. Becker, 49 Colo. 268, 112 Pac. 785 2863 Crite's Estate, In re, 155 Cal. 392, 101 Pac. 316 2303, 2305 Crocheran's Estate, 16 Ida. 441, 101 Pac. 741 2235 Cropper v. Goodrich, — Kan. — , 132 Pac. 163 2377 Cross, Estate of, 163 Cal. 778, 127 Pac. 70. .2620, 2621, 2626, 2631, 2672 Crowe Co. v. Adkinson, 67 Wash. 420, 121 Pae. 842 2411 Crowe, P. T. Co. v. Adkinson Co., 67 Wash. 420, 121 Pac. 843 2783 Cummins v. Eiordon, 84 Kan. 791, 115 Pac. 568 2639, 2642, 2651 Cunningham v. Richardson, 68 Wash. 24, 122 Pac. 369 2457 D Daggett's Estate, 15 Ida. 504, 98 Pac. 849 2305, 2306 Dakota Nat. Bank v. Kleinschmidt, — S. Dak. — , 144 N. W. 936 . . 2407 Daly, Estate of, 166 Cal. 225, 135 Pac. 953. .2604, 2715, 2735, 2743, 2761 Damon, Estate of, 10 Cal. App. 542, 102 Pac. 684 2834 Dan's Estate, In re, 29 Mont. 433, 104 Pae. 522 2517 Dane a. Layne, 10 Cal. App. 366, 101 Pac. 1067 2447, 2451, 2452, 2455, 2462, 2581 Dans V. Low, Go Or. 509, 135 Pac. 315 .- 2373 Daniels v. Spear, 65 Wash. 121, 117 Pac. 738 2336 Davidson v. Unknown Heirs of Peterson, 22 N. Dak. 484 2853 Davidson, Estate of, 21 Cal. App. 118, 131 Pac 67 2202, 2359, 2387, 2388, 2389, 2553, 2567 Deane's Ectate, In re, 64 Wash. 303, 110 Pac. 849 2506 De Bernal, Estate of, 165 Cal. 223, 131 Pac. 375 2434, 2475, 2552, 2670, 2671, 2672 X TABLE OF CASES. Pages De Bon v. Wallenberg, 52 Or. 404, 97 Pac. 717 2200 Deckenbach v. Deckenbach, 65 Or. 160, 130 Pac. 732 2623 Decker v. Decker, 3 Alas. 123 2286, 2320 De Gotardi v. Donati, 155 Cal. 109, 99 Pac. 492 2795 De Laveaga, Estate of, 165 Cal. 607, 133 Pac. 307 2191, 2594, 2597, 2598, 2599, 2600, 2602, 2725, 2736, 2737, 2744, 2745 De Monco v. Means, 47 Colo. 457, 107 Pac. 1108 2408 Denver First Nat. Bank v. Hotchkisa, 49 Colo. 593, 114 Pac. 312 2408, 2417, 2428, 2431 Denny v. Sehwabacher, 54 Wash. 689,~ 104 Pac. 139 2862 Deutsch T. Eohlfing, 22 Colo. App. 543, 126 Pac. 1126 2394, 2395, 2592, 2798 De Tries, In re, 17 Cal. App. 184, 119 Pae. 109 2535, 2536, 2538 Dewalt V. Eaine, 35 Okla. 197, 128 Pac. 121 2246 Dillon V. Gray, 87 Kan. 129, 123 Pac. 878 2611 Divine v. Harmon, 30 Okla. 820, 121 Pac. 219 2208 Dobbs V. Lilley, 86 Kan. 513, 121 Pae. 505 2206 Dobson V. Holmes, 83 Kan. 476, 112 Pac. 121 2850 Dodson V. Middleton, 38 Okla. 763, 135 Pae. 369 2260 Dombrowski, Estate of, 163 Cal. 290, 125 Pac. 233 2604, 2605, 2619, 2704, 2856 Donaldson v. Winningham, 62 Wash. 212, 113 Pac. 286 2269 Donnellan, Estate of, 164 Cal. 14, 127 Pae. 166, 168 2631, 2632, 2636, 2637, 2640, 2648, 2762 Douglas V. Douglas, 22 Ida. 336, 125 Pac. 796 2288, 2797 Douglas V. Loftus, 85 Kan. 720, 119 Pac. 74 2201, 2405 Dow V. Jimpson, 17 N. Mex. 357, 132 Pac. 568 2496, 2497 Dow V. Lillie, 144 N. W. 1084 2409, 2412, 2454, 2546, 2849 DuflE v^ Keaton, 33 Okla. 92, 124 Pae. 291 2248 Dunphy's Estate, 158 Cal. 1, 109 Pac. 627 2261 Durant's Will, In re, 89 Kan. 347, 131 Pac. 613 2758 Durst v. Haenni, 23 Colo. App. 431, 130 Pac. 81 2340 Duvall V. Healy Lumber Co., 57 Wash. 446, 107" Pac. 358 2781 Dwyer's Estate, In re, 159 Cal. 664, 115 Pac. 235 2458, 2556, 2591, 2592, 2664, 2665, 2675, 2691 Dye's Estate, In re, 16 N. Mex. 297, 113 Pac. 840 2854 Dye's WiU, In re, 16 N. Mex. 297, 120 Pac. 306 2218 Dyment v. Nelson, 166 Cal. 38, 134 Pac. 988 2792 E Eaton V. Locey, 22 Cal. App. 762, 136 Pac. 534 2788 Eaves v. Mullen, 25 Okla. 679, 107 Pac. 433 2242, 2247 Eekert v. Schmitt, 60 Wash. 23, 110 Pac. 635 2205 Edson-Keith Co. v. Bedwell, 52 Colo. 310, 122 Pae. 393 2367, 2376 Edwall's Estate, In re, 75 Wash. 391, 134 Pae. 1043, 1046 2620 Edwards v. Puterbaugh, 86 Kan. 758, 121 Pac. 1116 2481, 2492 Eidinger v. Surgart, 13 Cal. App. 667, 110 Pac. 521 2423 TABLE OF CASES. ii Pages Ekblad v. Hanson, 85 Kan. 541, 117 Pac. 1028 2336 Elizalde v. Murphy, 11 Cal. App. 32, 103 Pac. 904 2317, 2318, 2319, 2335, 2408, 2492, 2494 Elliott, Estate of, 165 Cal. 339, 132 Pac. 439 2310 Emelle v. Spinner, 20 Wyo. 507, 126 Pae. 398 2515 Englehart's Estate, In re, 17 N. Mex. 299, 128 Pac. 67 2301 Evans, In re, 22 Utah 366, 130 Pac. 234 2561 Everts, Estate of, 163 Cal. 449, 125 Pac. 1058 2725, 2732, 2756, 2757, 2761 Enos, Estate of, — "Wash. — , 140 Pae. 680 2710, 2728 Ewing V. Nesbitt, 88 Kan. 708, 129 Pac. 1131 2697 F Fairbank v. Fairbank, — Kan. — , 139 Pae. 1011 2762 Fancher v. Fancher, 156 Cal. 13, 103 Pac. 206 2639, 2652 Fanning v. Green, 156 Cal. 279, 104 Pac. 308 2789 Farnum v. Kern VaUey Bank, 12 Cal. App. 426, 107 Pac. 568 2796 Fawcett v. McGahan Lumber Co., 39 Okla. 68, 134 Pae. 388 2433 Fay V. Fay, 165 Cal. 469, 132 Pac. 1040 2803 Fennell v. Feunell, 80 Kan. 730, 106 Pac. 1038 2202, 2203 Petting V. Winch, 54 Or. 600, 104 Pac. 723 1904 Fields, Ex parte, 56 Wash. 259, 105 Pac. 466, 469 2190, 2191, 2225 Finn v. Walsh, 19 N. Dak. 64 2289 First Nat. Bank v. Carter, 81 I?^n. 694, 107 Pac. 234 2383 First Nat. Bank v. Merrill, 47 Cal. Dee. 377, 139 Pac. 1066. .2380, 2381 First Nat. Bank v. Teirs, 29 Okla. 714, 119 Pac. 218 2212 First Nat. Bank of Denver v. Hotchkiss, 49 Colo. 593, 114 Pae. 312 2408, 2417, 2431 First Nat. Bank of Muskogee v. Teirs, 29 Okla. 714, 119 Pac. 218 2209 First Nat. Bank of Winfield v. Bangs, — Kan. — , 136 Pac. 917 2249, 2250 Fitchie v. Brown, 19 Haw. Ill 2510 Fitzgerald, Estate of, 161 Cal. 319, 119 Pac. 96 2630, 2638, 2681 Fleming v. Black Warrior Co., — Ariz. — , 136 Pac. 273 2341 Fleming v. Shay, 19 Cal. App. 276, 125 Pae. 761 2421 Fleming, Estate of, 162 Cal. 524, 123 Pae. 284 2533, 2545, 2566 Foley V. Northern Cal. P. Co., 165 Cal. 103, 130 Pae. 1183.. 2219, 2484 Forrester v. So. Pae. Co., 36 Nev. 247, 134 Pae. 757 2334 Forrester, Matter of, 162 Cal. 493, 123 Pac. 283. .2235, 2236, 2244, 2266 French v. Phelps, 20 Cal. App. 101, 128 Pac. 772, 776 2452, 2534, 2555, 2558 French v. Poole, 83 Kan. 281, 111 Pae. 488 2394 Fulkerson v. StUes, 156 Cal. 703, 105 Pac. 966 2795 Fulmer v. Gable, 73 Wash. 684, 132 Pac. 642 2622 Xll TABLE OF CASES. ' "■ Pages Gamble, Estate of, 166 Cal. 253, 135 Pae. 970...; 2552, 2565 Garten v. Trobridge, 80 Kan. 720, 104 Pae. 1067 2861 Garver v. Thoman, — Ariz. — , 135 Pae. 725 2404 Garver v. TEuner, — Ariz. — , 135 Pae. 726 2284 Gaston v. Gaston, 83 Kan. 215, 109 Pae. 777 2862 Gauss V. Trump, 48 Mont. 92, 135 Pae. 913 2425, 2431 Gehlen v. Gehlen, — Wash. — , 137 Pae. 313, 315 2666 German Am. Trust Go. v. Nat. Surety Co., 55 Colo. 499, 136 Pae. 457 2417 Ghio's Estate, In re, 157 Cal. 552, 108 Pae. 516, 137 Am. St. 145. . 2587 Gidney v. Chappie, 26 Okla. 737, 110 Pae. 1105 2733 Gille V. Emmons, 91 Kan. 462, 128 Pae. 608 , 2340 Gilmoiir v. Hawley Merchandise Co., 21 Colo. App. 301, 121 Pae. 766 2426 Gilmour v. First Nat. Bank, 21 Colo. App. 301, 121 Pae. 767 2426 Ginter ^. Ginter, 79 Kan. 721, 101 Pae. 635 2591, 2722, 2728, 2733, 2734 Gird's Estate, In re, 157 Cal. 534, 108 Pae. 499, 137 Am. St. 131 2191, 2533, 2534 Gladstone Lumber Co. v. Kelly, 64 Or. 163, 129 Pae. 764 2789 Glass, Estate of, 164 Cal. 765, 130 Pae. 868 2642 Gleason, Estate of, 164 Cal. 756, 130 Pae. 872 2726, 2738, 2744 Glover v. Fillmore, 88 Kan. 545, 129 Pae. 144 2624 Goetz's Estate, In re, 13 Cal. App. 292, 109 Pae. 492 2639, 2656, 2675, 2692, 2694, 2695 Going V. Guy, 166 Cal. 279, 135 Pae. 1128 2461 Goldsborough v. Hewitt, 23 Okla. 66, 99 Pae. 907 2370, 2384 Gomez v. Scanlan, 155 Cal. 528, 102 Pae. 12 2786 Gooeh V. Gooeh, 38 Okla. 300, 133 Pae. 242 2360, 2867, 2376 Goodfellow, Estate of, 166 Cal. 409, 137 Pae. 12 2670, 2671, 2676 Gordon Eeduetion Co. v. Loomer, 50 Colo. 409, 115 Pae. 718. .2406, 2408, 2438 Goss' Estate, In re, 73 "Wash. 330, 132 Pae. 409 2478, 24S1 Gray, Estate of, 159 Cal. 159, 112 Pae. 890 2680, 2685, 2687 Greenleaf's Estate, In re, 69 Wash. 478, 125 Pae. 790 2019 Gregory's Estate, In re, 12 Cal. App. 309, 107 Pae. 566 2573, 2659, 2695 Grey v. Hanson, 86 Kan. 933, 122 Pae. 879 2247 Grogan's Estate, In re, 38 Mont. 540, 100 Pae. 1046 2463, 2464 Groom v. Wright, 30 Okla. 652, 121 Pae. 215 2378, 2379 Guardianship of Corcoran, 3 Alas. 263 2255 Guardianship of Snowball, 156 Cal. 240, 104 Pae. 444. .2238, 2239, 2240 Guardianship of Tilton, 15 Cal. App. 244, 114 Pae. 594 2275 Guinasso's Estate, In re, 13 Cal. App. 518, 110 Pae. 325 2773 TABLE OF CASES. XUl Pages Gunrow v. Simonitseh, 21 N. Dak. 281 2309 Guye's Estate, In re, 63 Wash. 167, 114 Pac. 1042, 132 Am. St. 1111 2300, 2305, 2622 H Haberly v. Treadgold, — Or. — , 136 Pac. 335 2341 Hackett, Estate of (S. Dak.), 145 N. W. 438 2738 Hagan v. Sacrison, 19 N. Dak. 173 2665 Hagan v. Sullivan, 24 Ka. 19, 182 Pac. 106 2766 Hale V. Hale, — Okla. — , 135 Pac. 1145 2350 Hallett V. Alexander, 50 Colo. 37, 114 Pac. 493 2676 Hall, Estate of, 19 Haw. 531 2840 Hamlin v. Hamlin, 59 Wash. 182, 109 Pac. 365 2691 Hammel v. Parrish, — Utah — , 134 Pac. 901 2221, 2223 Hammond v. McCollough, 159 Cal. 639, 115 Pac. 216 2786 Hancock's Estate, In re, 156 Cal. 804, 106 Pac. 58 2307, 2391 Hannon v. Southern Pac. E. Co., 12 Cal. App. 350, 107 Pac. 335 2200, 2201, 2359, 2364, 2365 Hansen v. Jones, 57 Or. 416, 109 Pac. 869 2375 Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444 2203, 2593 Hanson v. Swan, — Kan. — , 140 Pac. 100 2308 Hanson, Estate of, 159 Cal. 401, 114 Pac. 810 2507, 2508 Hapai v. Brown, 21 Haw. 499 2643 Harbison v. Beets, 84 Kan, 11, 113 Pae. 423 2601 Hardy v. Mayhew, 158 Cal. 95, 110 Pac. 113, 139 Am. St. 73. .2533, 2554, 2673 Harrington v. Jones, 53 Or. 237, 99 Pac. 936 2290 Harris v. Munro Co., 10 Cal. App. 589, 102 Pac. 821 2717 Harris, In re, — Ariz. — , 140 Pac. 828 2251 Harrison v. Miller, 87 Kan. 48, 123 Pae. 854 2240, 2246, 2260 Hart V. Tabor, 161 Cal. 21, 118 Pac. 252 2368, 2369, 2372, 2379 Hart, Ex parte, 21 Cal. App. 30, 130 Pac. 704. 2235 Harter Co. v. Geisel, 18 Cal. App. 282, 122 Pae. 1094 2403, 2411, 2476, 2524 Hartman, Estate of, 157 Cal. 206, 107 Pac. 105 2213, 2567 Hart's Will, In re, — Or. — , 132 Pac. 526 2594 Hartwig v. Plynn, 79 Kan. 595, 100 Pac. 642 2340 Hatfield's Will, In re, 21 Colo. App. 443, 122 Pac. 64 2862 Haub V. Leggett,-160 Cal. 491, 117 Pac. 556 2412, 2413, 2414 Hawk V. U. S. Fid. & G. Co., 83 Kan. 777, 112 Pac. 602 2256, 2260 Hawkins v. Hansen, — Kan. — , 139 Pac. 1002 2648 Hawkins v. Stevens, 21 Okla. 849, 97 Pac. 567 2210 Hawkins ?. Superior Court, 165 Cal. 743, 134 Pac. 327 2402, 2403, 2582 Hayes' Estate, 55 Colo. 340, 135 Pac. 450 2594, 2700, 2707, 2755 Hayne, Estate of, 165 Cal. 568, 133 Pac. 277 2551, 2677, 2678 Haynes v. City Nat. Bank of Lawton, 30 Okla. 614, 121 Pac. 182. . 2408 XIV TABLE OF CASES. Pages Head v. Nixon, 22 Ida. 765, 128 Pao. 557 2733 Heberle's Estate, In re, 155 Cal. 723, 102 Pao. 935 2574, 2695 Hedderich v. Hedderich, 18 N. Dak. 491, 497 2755, 2853 Heery v. Bead, 80 Kan. 380, 102 Pae. 846 2420 Hellier, Estate of, 17 Gal. App. 729 2431 Helliker-Jarvis Seminole Co. v. Lincoln, 33 Okla. 425, 126 Pac. 723 2207 Henderson, Estate of, 161 Cal. 354, 119 Pae. 496 2619, 2633, 2637, 2645, 2655, 2656 Hengst V. Burnett, — Okla. — , 135 Pae. 1063 2263 Herbert v. Wagg, 27 Okla. 674, 117 Pac. 210 2379 Hernung v. Sedgwick, 164 Cal. 629, 130 Pac. 212 2662 Herrick v. Miller, 69 Wash. 456, 125 Pac. 976 2688 Hess V. Hartwig, 83 Kan. 592, 112 Pae. 99 2861 Heydorf v. Cooper, 90 Kan. 511, 135 Pac. 578 2193, 2195 Hickey v. Thayer, 85 Kan. 556, 118 Pae. 56 2223 Hickman Coleman Co. v. Leggett, 10 Cal. App. 20, 100 Pac. 1072 2476, 2477 Higgin's Estate, 156 Cal. 257, 104 Pae. 6 2477, 2478, 2510, 2602, 2723, 2731, 2732, 2742, 2743, 2752, 2755 HiU V. Eeed, 23 Okla. 616, 103 Pac. 855 2218 Hill, Estate of, 47 Cal. Dec. 131, 138 Pac. 690 2212, 2390, 2793 Hillman v. Young, 64 Or. 73, 129 Pac. 124 2691 Hillman v. Young, 64 Or. 73, 129 Pao. 125 2338 Hilton V. Sloan, 37 Utah 259, 108 Pac. 696 2393, 2394 Hincheon, Estate of, 159 Cal. 755, 116 Pac. 47 2406, 2410, 2493, 2520, 2521 Hite's Estate, In re, 159 Cal. 392, 113 Pao. 1072 2478, 2506, 2511, 2517, 2550, 2639, 2643, 2674, 2696, 2767, 2843 Hobbins, Estate of, 41 Mont. 391, 108 Pao. 9 2601, 2671 Hodgdon, Estate of, 23 Cal. App. 415, 138 Pac. Ill 2715, 2716, 2724, 2770 Hodgkins v. Ashby, — Colo. — , 139 Pae. 541 2687, 2689, 2703, 2706, 2707 Hogun V. Leeper, 37 Okla. 655, 133 Pae. 190 2266 Hohn V. Bidwell, 27 S. Dak. 249 2212 Hohn V. Pauly, 11 Cal. App. 724, 106 Pac. 266 2359, 2361, 2366, 2367, 2374 Holland v. Holland, — Kan. — , 132 Pae. 989 2377 Hollinger, Ex parte, — Kan. — , 132 Pao. 1181 2224 Hollopeter, Ex parte, 52 Wash. 41, 100 Pac. 162, 132 Am. St. 952 2226 Holmes v. Campbell College, 87 Kan. 597, 125 Pae. 25 2595, 2601, 2639, 2658 Holmes v. Holmes, 27 Okla. 140, 111 Pao. 220 2372, 2568, 2581 Holt V. Wilson, 82 Kan. 268, 108 Pac. 87 2633, 2656 TABLE OF CASES. XV Pages Holt, Estate of, 19 Haw. 78 2200 Hooker's Estate, In re, 76 Wash. 72, 135 Pae. 817 2327 Hooks V, Kennard, 28 Okla. 457, 114 Pae. 744 2208, 2209 Hookway v. Thompson, 56 Wash. 57, 105 Pae. 1 2384 Hopper V. Sellers, — Kan. — , 139 Pae. 365 2682, 2727, 2730, 2751 Hopkins v. White, 20 Cal. App. 234, 128 Pae. 780, 782 2555, 2563 Herman, Estate of, 167 Cal. 473, 140 Pae. 11 2544, 2561 Horton v. Barto, 57 Wash. 477, 107 Pae. 194 2562, 2700, 2719 Hoscheid's Estate, In re, — Wash. — , 139 Pae. 67 2549, 2666, 2702, 2707, 2719 Hoss's Estate, 59 Wash. 360, 109 Pae. 1072 2301, 2305 Howe V. Kern, 63 Or. 487, 125 Pao. 938, 128 Pae. 820 2448, 2679 Howe, Estate of, 161 Cal. 152, 118 Pae. 515 2289, 2554, 2555, 2556 Hughes Land Co. v. Bailey, 30 Okla. 194, 120 Pae. 290 2207 Humbird Lumber Co. v. Doran, 24 Ida. 507, 135 Pae. 66 2789 Husheon v. Kelley, 162 Cal. 656, 124 Pae. 231 2421 Hustin V. Cobleigh, 29 Okla. 793, 119 Pae. 416 2248 Huston, Estate of, 163 Cal. 166, 124 Pae. 852 2595, 2598, 2603, 2738, 2759 I Idaho Trust Co. v. Miller, 16 Ida. 308, 102 Pae. 360 2284, 2418, 2439 Ingersoll v. Gourley, — Wash. — , 139 Pao. 208 2717, 2721, 2758 International Trust Co. v. Athony, 45 Colo. 474, 101 Pae. 782 2705 International ete. Co. v. Tolbert, 28 Okla. 595, 115 Pae. 601 2429 Iowa Land & T. Co. v. Dawson, 37 Okla. 593, 134 Pae. 39 2207, 2208 Irvine v. Beck, 62 Or. 593, 125 Pae. 834 2412 Irvine v. Irvine, — Or. — , 136 Pae. 19 2630 Irving V. Diamond, 23 Okla. 325, 100 Pae. 557 2208, 2395, 2396 Jaekson v. Lamar, 67 Wash. 385, 121 Pae. 860 2617 Jacobs V. All Persons Interested ete., 12 Cal. App. 163, 106 Pae. 896 2784 Jaffe V. Pae. B. & M. Co., 69 Wash. 308 2333 Jamison v. Gilbert, 38 Okla. 751, 135 Pae. 312, 342 2222, 2224, 2226 Jefferson v. Winkler, 26 Okla. 653, 110 Pae. 755 2234, 2242 JefE's Estate, In re, 73 Wash. 212, 131 Pae. 849 2601 Jenkins v. Jenkins, 66 Or. 12, 132 Pae. 543 2690 Jennings v. Alaska Treadwell etc. Co., 170 Fed. 151, 95 C. C. A. 388 2483 Jensen's Estate, In re, 37 Utah 428, 108 Pae. 928 2617 Jobson's Estate, 164 Cal. 312, 128 Pae. 938 2192, 2196, 2204 Jorgenson v. Winter, 69 Wash. 573, 125 Pae. 959 2274 John V. PauUin, 24 Okla. 636, 104 Pae. 365 2261 Johnson v. Canty, 162 Cal. 391, 123 Pae. 263 2285, 2550, 2551 Johnson v. Piltsch, — Okla. — , 128 Pae. 165 2291 Johnson v. Jimpson, — Okla. — , 139 Pae. 129 2395, 2396 XVI TABLE OF CASES. Pages Johnston, Estate of, 14 Cal. App. 376, 112 Pac. 191 2855 Jones V. Broadbent, 21 Ida. 535, 123 Pae. 477 2475, 2634 Jones V. Kepf ord, 17 "Wyo. 468, 100 Pac. 924 2368 Jones V. Leonardt, 10 Cal. App. 284, 101 Pae. 811. . , 2485 Jones V. Losekamp, 19 Wyo. 83, 114 Pac. 677 2363, 2382 Jones V. Seattle B. & T. Co., 56 Wash. 166, 105 Pac. 240,. 241 2453 Jones V. Wheeler, 23 Okla. 771, 101 Pae. 1112 2450 Jones, Estate of, 166 Cal. 147, 135 Pac 293 .2506, 2710, 2739, 2740, 2743,. 2?53, 2754, 2769 Jones Estate, 80 Kan. 632, 103 Pac. 772 241.'^, 2448, 2454, 2io6 Justis V. Atchison etc. B. Co., 12 Cal. App. 639, 108 Pae. 328 2785 K Kamaipiialii, Estate of, 19 Haw. 163 2522, 2581 Kane v. Madeiros, 19 Haw. 564 2263 K:aser v. Kaser, — Or. — , 137 Pac. 189 2634 iCastner v. Baker, — Kan. — , 139 Pac. 1189 2377 Kearney, Estate of, 13 Cal. App. 92, 109 Pac'. 37 '. 2857 Keating, Estate of, 162 Cal. 406, 122 Pac. 1079 2525, 2847 Keefe v. Keefe, 19 Cal. App. 310, 125 Pac. 929 2615 Keir v. Keir, 155 Cal. 96, 99 Pac. 487 2C72 Kelley v. Devin, 65 Or. 211, 132 Pac. 536 2609 Kelly V. Burgess, 84 Kan. 29, 115 Pac. 583 2742 Kelly V. Mosby, 34 Okla. 218, 124 Pae. 984. .. . 2378 Kelsey v. Carroll, — Wyo. — , 138 Pac. 868 2221 Kennedy's Estate, In re, 157 Cal. 517, 108 Pac. 2S0 2374, 2388, 2593, 2838 Kenneth v. Kidd, 87 Kan. 652, 125 Pac. 36 2P94 Kent V. Dalrymple, 23 Ida. 694, 132 Pac. 304, 308 2575, 2858 Kent, Estate of, 161 Cal. 142, 118 Pae. 523 2607 Kenyon v. Erskine, 69 Wash. 110, 124 Pac. 393 2373 Kerr v. Duvall, 62 Qr. 470, 125 Pac. 831 2635, 2639 Kerr v. Kerr, 85 Kan. 460, 116 Pac. 881 2735, 2749 Kessinger v. Schrader, 79 Kan. 23, 98 Pao. 236 2776 Kilborn, Estate of, 162 Cal. 4, 120 Pac. 762 2723, 2734, 2737, 2747, 2748, 2753, 2758, 2759, 2760, 2762, 2768, 2771, 2856 Killian v. Killian, 10 Cal. App. 312, 101 Pac. 806 2795 King V. Chase, 159 Cal. 420, 115 Pac. 407 2519 King V. Hawaiian Trust Co., Ltd., 21 Haw. 619. 2643, 2650 King V. Pauley, 159 Cal. 529, 115 Pao. 210 2563, 2583 Kingsbaeh v. Casey, 66 Wash. 643, 120 Pac. 108 2219 Kinne v. Phares, 79 Kan. 366, 100 Pac. 287 2658 Kinsell v. Thomas, 18 Cal. App. 683, 124 Pac. 220 2380 Kirby, Estate of, 162 Cal. 91, 121 Pac. 370 2200, 2205 Kirkpatrick v. Burgess, 29 Okla. 129, 116 Pac. 764 2241 Kislingbury v. Evans, 40 Utah 356, 121 Pac. 671 2428 Kline v. Cowan, 84 Kan. 772, 115 Pac. 587 2363 TABLE OF CASES. XVI] Pages Kline T. Gingery, 25 S. Dak. 18 24U3 Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 683, 684 2652, 2654, 2662 Klumpke, Estate of, 47 Cal. Dee. 390, 139 Pac. 1062 2385, 2388, 2389, 2391, 2794 Knooh V. Haizlip, 163 Cal. 146, 124 Eao. 993 2803 Knox V. Knox, 87 Kan. 381, 124 Pac. 410 2487 Kohnig V. Dunbar, 21 Ida. 258, 123 Pac. 544 2838 Keller's Estate, 40 Mont. 137, 105 Pac: 550 2305 Koloff V. Chicago M. & P. 8. Ry. Co., 71 "Wash. 543, 129 Pac. 400. 2308 Kowalsky v. Santa Cruz County Superior Court, 13 Cal. App. 218, 109 Pac. 158 2283, 2524, 2852 Kreig v. Lewis, 56 Ma. 196, 105 Pac. 483 2205 Kunkler, Estate of, 163 Cal. 797, 127 Pac. 43 2654, 2695 Kurtz V. Ogden etc. Co., 37 Utah 313, 108 Pac. 18 2290 L Lakua v. Manaia, 21 Haw. 160 2262 Lamb v. Baker, 27 Okla. 739, 117 Pac. 189 2208 Land, Estate of, 166 Cal. 538, 137 Pac. 246 2714, 2717, 2718, 2732 Lane v. Lane, — Colo. — , 140 Pac. 806 2547 Lapique v. Geantit, 21 Cal. App. 515, 132 Pac. 78 2791 Larson v. Larson, 15 Cal. App. 531, 115 Pac. 340 2791 Larson v. Stewart, 69 Wash. 223, 124 Pac. 384 2301 Lasoya Oil Co. v. Zulkey, — Okla. — , 140 Pac. 160 2257 Lathrop, Estate of, 165 Cal. 243, 131 Pac. 752 2339, 2611, 2663 La Tourette v. La Tourette, — Ariz. — , 137 Pac. 428 2202, 2776 Lavinburg, Estate of, 161 Cal. 536, 119 Pac. 915 2739, 2740, 2745, 2746, 2750, 2754 Laurie v. Crouch, — Okla. — , 139 Pac. 304 2370 Lawson v. Cobban, 38 Mont. 138, 99 Pac. 130 2478 Layne v. Johnson, 19 Cal. App. 95, 124 Pac. 860.2301, 2309, 2488, 2489 Leard v. Askew, 28 Okla. 300, 114 Pac. 251 2625 Learned 's Estate, In re, 156 Cal. 309, 104 Pac. 315 2696, 2786 Lee, In re, 165 Cal. 279, 131 Pac. 749 2236 Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 959 2595, 2722 Leialoha v. Walters, 21 Haw. 304 2195 Leninger v. Leninger, 167 Cal. 297, 139 Pac. 679 2793 Leverone v. Weakley, 155 Cal. 395, 101 Pac. 304 2405, 2418 Lewis V. Hill, 61 Wash. 304, 112 Pac. 375 2479 Lichtenberg 's Estate, 58 Wash. 585, 109 Pac. 49 2506, 2509 Lieb 's Estate, In re, 70 Wash. 374, 126 Pac. 914 2307 Lincoln Trust Co. of New York v. Gaddis, — N. Mex. — , 139 Pac. 461 2480 Lindner, Estate of, 13 Cal. App. 208, 109 Pac. 492 2262 Linderholm v. Ekblad, — Kan. — , 139 Pac. 1015 2256 Little Bm V. Swanson, 64 Wash. 650, 117 Pac. 481 2208 Livermore v. Ayres, 86 Kan. 50, 119 Pac. 549 2311 XVIU TABLE OP CASES. Pages Loherde, In re, 17 Cal. App. 475, 120 Pac. 56 2318, 2493, 2503, 251S, 2519 Long V. Dufur, 58 Or. 162, 113 Pac. 59 2189, 2192 Long, Estate of, 9 Cal. App. 754, 100 Pac. 892 2410 Lopez, Estate of, 19 Haw. 620 2489 Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pac. 640 2243, 2245, 2253, 2254 Lotzgesell's Estate, In re, 62 "Wash. 352, 113 Pao. 1107 2521, 2635, 2838 Loucks, Estate of, 160 Cal. 551, 117 Pac. 673 2544 Love T. Cavett, 26 Okla. 179, 109 Pae. 553 2383 Love V. "Walker, 59 Or. 95, 115 Pac. 300 2199, 2205, 2635, 2639 Loveland, Estate of, 162 Cal. 595, 123 Pac. 801.. 2594, 2597, 2739, 2740 Lowrey v. Harlow, 22 Colo. App. 73, 123 Pac. 147 2676 Lowery v. Hawker, 22 N. Dak. 319 2549 Lucas V. Lucas, 20 Haw. 433 2657 Lucke's Estate, 61 Or. 483, 123 Pac. 48 2425 Lund V. Sup. Ct., 159 Cal. 439, 114 Pae. 569 2272 Luscomb V. Eintzelberg, 162 Cal. 433, 123 Pac. 247 2563, 2574, 2673, 2674 Lynam v. Vorwerk, 13 Cal. App. 501, 110 Pac. 355 2780 Lyon, Estate of, 163 Cal. 803, 127 Pao. 75 2551, 2555 M Ma Harry v. Batman, 29 Okla. 46, 116 Pac. 935 2241 MackaU, In re, 60 Wash. 655, 111 Pac. 885 2259 Mackey v. Atoka, 34 Okla. 512, 126 Pae. 767 2850 Macky's Estate, In re, 46 Colo. 79, 102 Pac. 1089 2848 Magee v. Big Bend Land Co., 57 "Wash. 406, 99 Pac. 17, 18. . .2286, 2783 Malory v. "Wm. Cameron Co., 29 Okla. 763, 119 Pac. 587 2360, 2379 Mann v. Redman (N. Dak.), 145 N. "W. 1032 2425 Manning, In re, 38 Utah 281, 112 Pac. 169 2274 Mansfield v. Hill, 56 Or. 400, 107 Pae. 473 2287, 2363, 2375, 2383 Manser's Estate, In re, 60 Or. 240, 118 Pae. 1026 2327 Marion v. Eedmon, 23 N. Dak. 508 2430 Marks &■ Co.'s Estate, 66 Or. 340, 133 Pac. 778 2326, 2495 Marks v. "WoUenberg 's Estate, 66 Or. 347, 133 Pac. 779 2495 Martenson, In re, — "Wash. — , 137 Pac. 340 2268 Martin v. Barger, 62 "Wash. 672, 114 Pac. 506 2680 Martin v. Hush, — Kan. — , 139 Pac. 401 2377 Martin & Co. v. Brosnan, 18 Cal. App. 477, 123 Pac. 550 2422, 2424, 2425, 2126 Martin, Estate of,- 163 Cal. 803, 125 Pac. 1055 2306, 2311, 2313 Martin, Estate of, 166 Cal. 399, 137 Pac. 2 2303, 2310 Mathias v. Tingey, 39 Utah 561, 118 Pac. 782 2419 Meeker v. Mettler, 50 "Wash. 473, 97 Pac. 508 2253 TABLE OF CASES. XIX Pages Meier, Estate of, 165 Cal. 456, 132 Pac. 764 2294, 2295, 2296, 2764 Melzner v. N. P. Elwy. Co., 46 Mont. 162, 127 Pao. 148 2218 MendenhaU v. Davis, 52 Wash. 169, 100 Pae. 339 2420, 2428 Merley v. Fewel, 32 Okla. 452, 122 Pac. 700 S207 Metrakos v. Kansas City M. & G. Ey. Co., 91 Kan. 342, 137 Pac. 954 2311 Miller v. Ash, 156 Cal. 544, 105 Pac. 600.. 2246, 2250, 2255, 2411, 2481 Miller v. Higgins, 14 Cal. App. 156 2194 Miller v. Katz, 10 Cal. App. 576, 102 Pac. 946 . . 2404, 2406, 2410, 2423 Miller v. Lewiston Nat. Bk., 18 Ida. 124, 108 Pac. 906 2414 Miller v. Sehlegel, 15 Cal. App. 557, 115 Pac. 329 2524 Miller v. Weston, — Colo. App. — , 138 Pae. 428, 429, 431. .2283, 2661, 2755 Miller's Estate, In re, 158 Cal. 420, 111 Pae. 255 2323, 2505, 2507, 2592, 2593, 2681, 2696 Miller's Estate, 37 Mont. 545, 97 Pae. 941 2603, 2604, 2606 Miller, Estate of, 36 Utah 228, 102 Pac. 997 2741 Miller's Estate v. Executrix of Miller's Estate, 90 Kan. 819, 136 Pae. 256 2302, 2850 Mills V. Stump, 20 Cal. App. 84, 128 Pac. 349, 350 2362, 2363 Mitchell V. Brown, 18 Cal. App. 117, 122 Pae. 426 2194 Mitchell V. Kelly, 82 Kan. 1, 107 Pac. 782, 136 Am. St. 97 2255 Mitchell, Estate of, 160 Cal. 618, 117 Pae. 774 2637, 2638, 2650 Molina v. Eamirez, — Ariz. — , 138 Pac. 17 2783 MoUenkopf 's Estate, In re, 164 Cal. 576, 129 Pac. 997 2719, 2771 Moore v. Crandall, 205 Fed. 689 2792 Moore v. Elliott, — Wash. — , 136 Pac. 849 2666 Moore v. Ingram, 46 Colo. 204, 102 Pae. 1071 2338 Moore, Estate of, 162 Cal. 324, 122 Pae. 844 2545 Moran, Ex parte, 83 Kan. 615, 112 Pac. 94 2343 Moreel, Estate of, 162 Cal. 188, 121 Pae. 733 2723, 2727, 2729, 2733, 2734, 2748, 2750, 2751, 2762 Morse v. Morris, 57 Wash. 43, 106 Pac. 469, 135 Am. St. 968 2363 Moseley v. McBride, — Okla. — , 138 Pae. 138 2474 Mott V. Long, 90 Kan. 110, 132 Pac. 998 2487 Mousnier v. Sup. Ct., 159 Cal. 663, 115 Pae. 221 2510 Mullen V. Short, 38 Okla. 333, 133 Pae. 230 2209 Munroe, Estate of, 161 Cal. 10, 118 Pae. 242 2294, 2295, 2311 Murphy v. Nett, 47 Mont. 38, 130 Pae. 452, 453 2594, 2721, 2847 Murphy v. Tillson, 64 Or. 558, 130 Pae. 638 2546, 2643 Murphy's Estate, In re, 43 Mont. 353, 116 Pae. 1005, 137 Am. St. 110 2639, 2654, 2655, 2659, 2720, 2721 Murray v. Johnson, 28 S. Dak. 572 2425 Murray's Estate, 56 Or. 132, 107 Pac. 21 2410, 2520 Muskogee Dev. Co. v. Green, 22 Okla. 237, 97 Pae. 619 2249 Muskogee, First Nat. Bank of v. Teirs, 29 Okla. 714, 119 Pae. 218 2209 XX TABLE OF CASES. Pages Myers, Estate of, 9 Cal. App. 694, 100 Pac. 712 2304 McAfee v. McAfee's Estate, — Colo. — , 136 Pae. 1052 2857 MeClanahan v. McClanahan, — Wash. — , 137 Pae. 479 2620 McClellan's Estate, In re, 27 8. Dak. 109 2215 McGlellan, Estate of John, In re, 31 S. Dak. 653 2215 McCormiok v. Brownell, 25 Ida. 11, 136 Pae. 6J4 2302, 2305 McDonald v. O'Shea, 58 "Wash. 169, 108 Pae. 439 2433 MeDougald v. Low, 164 Cal. 107, 127 Pae. 1027 2644, 2843 McElroy v. Whitney, 24 Ida. 210, 133 Pae. 118 2416 MeParland v. Johnson, 22 Ida. 694, 127 Pac. 912 2798 McGannon v. State, 33 Okla. 145, 124 Pac. 1063 2833 McGregor v. Jensen, 18 Ida. 320, 109 Pae. 731 2541 McKay v. Gesford, 163 Cal. 243, 124 Pac. 1016 2360, 2364, 2367 McKelvey v. McKelvey, 79 Kan. 82, 99 Pae. 238 2784 McKinnou's Estate, In re, 27 S. Dak. 139 2837 McLean v. McLean, — Kan. — , 140 Pac. 849 2211 McLeod V. Moran, 11 Cal. App. 622, 105 Pac. 932 2361, 2785 McNeiU V. Morgan, 157 Cal. 373, 108 Pao. 69 2322, 2323 McNeill, Estate of, 155 Cal. 333, 100 Pao. 1086 2312 McPhee v. Corrigan, 10 Cal. App. 162, 101 Pac. 530 2523 MePhee's Estate, In re, 10 Cal. App. 450, 117 Pae. 532 2314, 2317, 2327, 2517, 2519, 2520, 2523, 2857 MoWhorter v. Brady, — Okla. — , 140 Pac. 783 2384 N Nassano v. Tuolumne Co. Bank, 20 Cal. App. 603, 130 Pac. 29.. 2404, 2624 Nathan v. Dierssen, 164 Cal. 607, 130 Pac. 12, 14 2415, 2431 National Bank of Norton, v. Duncan, 187 Kan. 610, 125 Pac. 76 . . . 2378 Neal V, Davis, 53 Or. 423,, 101 Pae. 212 2205, 2393 Needham's Estate, In re, 70 Wash. 229, 126 Pac. 430 2772 Nelson v. Schoonover, 89 Kan. 779, 132 Pae. 1185 2507, 2520, 2610, 2611, 2838 Nelson, Estate of, 167 Cal. 321, 139 Pac. 692 2352, 2353 Nesbit V. Gragg, 36 Okla. 703, 129 Pae. 705 2702 Newell, In re, 18 Cal. App. 258, 122 Pac. 1099. . .2325, 2326, 2327, 2417 Newlove v. Mercantile Trust Co. of San Francisco, 156 Cal. 657, 105 Pac. 971 2683, 2689 NieeoU's Estate, In re, 164 Cal. 368, 129 Pac. 278, 280 2797 Nichols V. Bryden, 86 Kan. 941, 122 Pae. 1119 2247, 2250, 2273 Nicol Co. V. Cameron, 23 Cal. App. 124, 137 Pac. 270 2422 Nicoll, Estate of, 164 Cal. 368, 129 Pac. 278, 279 2388, 2390 Niguette v. Green, 81 Kan. 569, 106 Pac. 270 2454 Nolan V. Hyatt, 163 Cal. 1, 124 Pae. 439 2787 Nolan V. Nolan, 155 Cal. 476, 101 Pac. 520, 132 Am. St. 99. . .2374, 2381 Nordstrom v. Corona City Water Co., 155 Cal. 206, 100 Pac. 242. . 2410 TABLE OF CASES. XXI Pages Northwest Thresher Co. ▼. McOarroU, 30 Okla. 25, 118 Pao. 352 2367, 2374 Noyes' Estate, In re, 40 Mont. 231, 106 Pac. 357, 358 2591, 2604, 2607, 2618, 2625, 2626 O'Brien v. Nelson, 164 Cal. 573, 129 Pac. 985 2300, 2312, 2559, 2570 O 'Gorman, Estate of, 161 Cal. 654, 120 Pao. 33 2630, 2645, 265!) Oldershaw v. Matteson & Williamson Mfg. Co., 19 Cal. App. 180, 125 Pae. 263 2803 Old's Estate v. Appling, 89 Kan. 340, 131 Pao. 569 2274 Oles V. Wilson, — Colo. — , 141 Pae. 496 2410, 2616 Olson V. Ooodsell, 56 Wash. 251, 105 Pao. 463 2376 Olson, Estate of, 19 Cal. App. 379, 126 Pac. 171. .2724, 2731, 2741, 2744 Osage Mere. Co. v. Blanc, 79 Kan. 356, 99 Pac. 601 2368 Osborn v. Mills, 20 Cal. App. 343, 128 Pac. 1009 2787 Ostluud's Estate, In re, 57 Wash. 359, 106 Pac. 1118 2559, 2560 Cutwaters v. Brownlee, 17 Cal. App. 145, 135 Pao. 300 2427 Overly v. Angel, 84 Kan. 259, 113 Pao. 1041 2612 Overton, Estate of, 13 Cal. App. 117, 108 Pao. 1021... 2353, 2354, 2852 Owens V. Andrews, 17 N. Mex. 597, 131 Pae. 1004 2689 P Packer's Estate, In re, 164 Cal. 525, 129 Pac. 778, 779 2598, 2603, 2636, 2725, 2726, 2768, 2770 Palmer v. Abrahams, 55 Wash. 3.'52, 104 Pac. 649 2244 Pappleton's Estate, In re, 34 Utah 285, 97 Pac. 141 2634, 2638, 2645, 2646 Parker v. Belts, 47 Colo. 428, 107 Pac. 818 2200 Parker, Estate of, 19 Haw. 393 2294 Parks V. Boynaems, 21 Haw. 196 2575 ParneU v. Washington, — Okla. — , 139 Pao. 121 2257 Parsons v. Cashman, 17 Cal. App. 610, 137 Pac. 1109 2609, 2614 Parsons, Estate of, 159 Cal. 425, 114 Pac. 570. . . .2706, 2759, 2760, 2770 Patrick v. Austin, 29 N. Dak. 267 2430 Patterson's Estate, In re, 155 Cal. 626, 102 Pao. 941, 132 Am. St. 116 : 2628, 2773 Patterson's Estate, In re, 68 Wash. 377, 123 Pae. 518, 132 Am. St. 116 2722 Payne v. Neuval, 155 Cal. 46, 99 Pac. 476 2201 Peck V. Peek, — Wash. — , 137 Pao. 139 2654 Penalosa State Bank v. Murray, 86 Kan. 766, 121 Pae. 1117 2679 Pennington v. Newman, 36 Okla. 594, 129 Pac. 693. . . .2319, 2340, 2341 People V. Palmer's Estate, — Colo. — , 139 Pac. 555 2843 People V. Parker, 54 Colo. 604, 132 Pac. 57 2318, 2581 People's Bank & T. Co. v. Nelson, 37 Okla. 500, 132 Pae. 493 2258 2Uai TABLE OF CASES. Pages Pereira v. Pereira, 156 Cal. 1, 103 Pae. 488 27iJ5 Perryman v. Woodward, 37 Okla. 792, 138 Pac. 244 2356 Peterson's Estate, In re, — Mont. — , 140 Pac. 239 2666 Peterson's Estate, 22 N. Dak. 503 2544 Petitpierre v. Maguire, 155 Cal. 242, 100 Pae. 690 23S1 Piekard's Estate, In re, — Utah — , 129 Pae. 356 2677 Pierce's Estate, In re, 63 Wash. 437, 115 Pae. 836, 837 2625, 2643, 2708 Pigeon V. Buck, 38 Okla. 101, 181 Pac. 1088 2207 Pinnacle Gold Mining Co. v. Popst, 54 Colo. 451, 131 Pae. 418 . . 2890, 2404 Pinney v. Sulzen, — Kan. — , 137 Pae. 987 , 2222, 2223 Pittman v. Pittman, 81 Kan. 648, 107 Pac. 235 2203 Plains Land & Imp. Go. v. Lynch, 38 Mont. 271, 99 Pae. 853. .2405, 2446 Pool V. Pool, — Wyo. — , 133 Pac. 374. 2419 Powers V. Pense, 20 Wyo. 327, 123 Pac. 928 2873 Prager, Estate of, 166 Cal. 450, 137 Pac. 37. 2203, 2684, 2686 President and Trustees etc. v. Keene, 59 Or. 496, 117 Pae. 426 2650 Price's Estate, In re, 14 Cal. App. 462, 112 Pac. 482 2590, 2604, 2618, 2708 Prince v. Prince, 64 Wash. 552, 696, 117 Pac. 258 2621 Pritehard v. Whitney, Estate of, 164 Cal. 564, 129 Pac. 989. .2484, 2485 Pugh V. Bell (Cal. App.), 182 Pac. 286 2609, 2616 Purcell's Estate, In re, 164 Cal. 800, 128 Pac. 982, 934 2603, 2725, 2744 Pureell, Estate of, 167 Cal. 176, 138 Pac. 704 2649, 2650 Q Quinton v. Adams, 83 Kan. 484, 112 Pac. 95 2375 E Eaggio V. Palmtag, 155 Cal. 797, 103 Pac. 312 2372, 2385, 2406, 2418, 2434 Raish V. Warren, 18 Cal. App. 655, 124 Pac. 95 2284 Kalston v. Wichita Gas Co., 81 Kan. 86, 105 Pac. 430 2384 Randolph v. Prowers, — Colo. — , 122 Pac. 808 2448 Rankin, Esta;te of, 164 Cal. 138, 127 Pae. 1084 2304, 2554 Rasniussen v. Sevier Valley Co., 40 Utah 871, 121 Pac. 745 2341 Bauer's Loan and Collection Co. v. Berthiaume, 21 Cal. App. 670, 132 Pac. 596 2792 Eaulet V. Northwestern Nat. Ins. Co., 157 Cal. 213, 107 Pac. 292. . 2201 Eausier v. Hyndman, 18 N. Dak. 197 2854 Regents etc. v. Turner, 159 Cal. 541, 114 Pae. 842 2324, 2412, 2433 Eeutie v. McCoy, 35 Okla. 77, 128 Pae. 244 2209 Eichards v. Blaisdell, 12 Cal. App. 101, 106 Pac. 732 2199, 2841, 2407, 2432, 2482, 2483 Eichmond, Estate of, 9 Cal. App. 402, 99 Pae. 554 2523 TABLE OF OASES. XXlll Pages Kicks, Estate of, 160 Cal. 450, 117 Pac. 532.2714, 2716, 2726, 2727, 2728, 2729, 2730, 2747, 2750, 2751, 2753, 2754, 2762, 2768, 2857 Riley v. Day, 88 Kan. 503, 129 Pac. 524 2192, 2193, 2196 Rio Grande Ey. Co. v. Salt Lake Inv. Co., 35 Utah 528, 101 Pac. 589 2454 Eiordan, Estate of, 13 Cal. App. 313, 109 Pae. 629 2720, 2738, 2742, 2743 Roach, Estate of, 159 Cal. 260, 113 Pac. 373 2643, 2645, 2684, 2685 Robb, Estate of, 163 Cal. 801, 127 Pac. 55 2671 Robbins v. Hoover, 50 Colo. 610, 115 Pac. 530 2680, 2701 Roberts ' Estate, In re, 48 Mont. 40, 135 Pac. 910 2852 Robertson v. O'Neill, 67 Wash. 121, 120 Pae. 885 2426 Robertson v. Tarry, 83 Kan. 716, 112 Pac. 603 2429 Robinson, Estate of, 159 Cal. 608, 115 Pac. 49. . .2632, 2642, 2646, 2647 Robl, Estate of, 163 Cal. 801, 127 Pac. 55 2457 Rock V. Zimmerman, 25 S. Dak. 241 2681 Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611 2231, 2260 Rogers v. Schlotterback, 167 Cal. 35, 138 Pae. 728 2610, 2612, 2615 Rohrer, Estate of, 160 Cal. 574, 117 Pac. 672 2419, 2420, 2525 Rooke V. Queen's Hospital, 12 Haw. 375, 389 2200 Rooker v. Samuels, 10 Cal. App. 227, 101 Pac. 689 2424 Rooney v. Hurlbut, 79 Kan. 231, 98 Pac. 765 2073 Ruiz V. Santa Barb. G. & E. Co., 164 Cal. 188, 128 Pac. 330, 331 . . 2322, 2323, 2484, 2485 Eullman v. RuUman, 81 Kan. 521, 106 Pac. 52 • 2250 Eunyon v. Winstoek, 55 Or. 202, 104 Pac. 418 2395 Russell V. Russell, 20 Cal. App. 457, 129 Pae. 467 2237 Kuth V. Krone, 10 Cal. App. 770, 103 Pac. 960 2590, 2717 S Salisbury v. Salisbury, — Kan. — , 141 Pae. 173 2648 Sail, In re, 59 Wash. 539, 110 Pac. 33, 140 Am. St. 885 2267 Sanders v. Sanders, 28 Okla. 59, 117 Pac. 338 2208 Sanford v. Bergin, 156 Cal. 43, 103 Pac. 333 2335, 2434, 2476 Sanguinetti v. Eossen, 18 Cal. App. 623, 107 Pae. 560 2391 Sappingfield v. Sappingfield, — Or. — , 135 Pae. 334 2707 Sarbach v. Fid. and Dep. of Maryland, 87 Kan. 774, 125 Pae. 63. . 2414 Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074 2373 Sayre v. Sage, 47 Colo. 559, 108 Pac. 163 2765 Schafer v. Ballou, 35 Okla. 169, 128 Pac. 498 2643 Schindler v. Parzoo, 52 Or. 452, 97 Pac. 757 2266 Sehmitt v. Jornson, — Nev. — , 140 Pac. 519 2249 Scholle V. Finnell, 166 Cal. 546, 137 Pac. 241 2415 Schoonover v. Schoonover, 86 Kan. 487, 121 Pae. 485 2611 Schultz Y. Schultz, 19 N. Dak. 688, 690 2212, 2665 Schuyler v. So. Pae. Co., 37 Utah 581, 109 Pae. 461 2218 Scott V- Jacobs, 31 Okla. 109 2207 XXIV TABLE OF CASES. Pages Scott V. McGirth, — Okla. — , 139 Pae. 519 2714, 2720, 2730, 2758 Scott V. "Watson, — Wash. — , 135 Pac. 645 2356 Scott, Stamp & Co. v. Leake, 9 Cal. App. 511, 99 Pac. 731 2417 Seattle Nat. Bank v. Dickinson, — Wash. — , 130 Pac. 374 2411 Seller's Estate, In re, 164 Cal. 181, 128 Pac. 324, 334 2204, 2310 Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 136 Am. St. 110. .2657, 2705, 2722 Semple v. Baken, 39 Okla. 563, 135 Pac. 1141 2592 Sewell V. Price, 164 Cal. 265, 128 Pac. 407, 409 2361 Seymour, Estate of, 15 Cal. App. 287, 114 Pae. 1023 2528, 2851 Shafer v. Ballon, 35 Okla. 169, 128 Pac. 498 2205 Shafter's Estate, 44 Colo. 547, 99 Pae. 39 2855 Shane v. Peoples, 25 N. Dak. 191 2452, 2456 Sharp, Estate of, 10 Cal. App. 1, 100 Pac. 1071 2535, 2855 Shattuck V. Weaver, 80 Kan. 82, 101 Pac. 649 2368 Shaw V. Bernal, 163 Cal. 262, 124 Pac. 1012 2803 Shaw V. Shaw, 28 S. Dak. 223 2732 Sherrau v. Dallas, 21 Cal. App. 405, 132 Pac. 454 2562 Shiels V. Nathan, 12 Cal. App. 604, 108 Pac. 34 2296, 2337, 2338, 2415, 2416, 2480, 2547 Shipman v. Brown, 36 Okla. 623, 130 Pac. 603 2338, 2524 Shirey, Estate of, 167 Cal. 193, 138 Pac. 994 2355, 2368 Shore v. Wall, 22 Colo. App. 146, 122 Pac. 1122 2329 Shufeldt- V. Hughes, 55 Wash. 246, 104 Pac. 256 2476, • 2505, 2510, 2622, 2774 Sieb.'s Estate, In re, 70 Wash. 374, 126 Pac. 912 2717, 2718 Siegley v. Jimpson, 73 Wash. 69, 131 Pac. 4S1 2638 Simmons v. McComber, 60 Wash. 469, 111 Pac. 581 2627 Simmons v. Simmons, 166 Cal. 438, 137 Pac. 21 2789 Simpson v. Durbin, — Or. — , 136 Pac. 348, 349 2607, 2741 Sims V. Hedges, 32 Okla. 683, 123 Pac. I5.': 2245 Singer v. Taylor, 90 Kan. 285, 133 Pac. 843 2590, 2659 Singer & Co. v. Austin, 19 N. Dr.k. 548 2428 S.ioli V. Hogenson, 19 N. Dak. 92 2561 Sjurson 's Estate, 29 S. Dak. 572 2285 Skelly's Estate (S. Dak.), 143 N. AV. 274 2543 Skinner v. Kniekrehm, 10 Cal. App. 596, 102 Pac. 947 2218, 2219 Sloan V. West, 63 Wash. 623, 116 Pac. 273 2790 Smith V. Bangham, 156 Cal. 359, 104 Pac. 689 2.364, 2381 Smith V. Cameron, — Kan. . — , 141 Pac. 596 2616 Smith V. Hensen, 89 Kan. 792, 132 Pac. 997 2650 Smith V. Kent Lumber Co., — Wash. — , 138 Pae. 879 , . . ■. 2255 Smith V. Lindsay, 20 Haw. 330 2663 Smith V. Scott, 51 Wash. 330, 98 Pac. 763 2863 Smith i. Smith, 45 Mont. 535, 125 Pac. 1002 2245 Smith V. Whiting, 55 Or. 393, 106 Pac. 793 2290, 2450 Smithies v. Colburn, 20 Haw. 138 2505 TABLE OP CASES. XXV Pages Smythe v. Smythe, 28 Okla. 266, 114 Pac. 257 2226 Snelling v. Butler, 66 Wash. 165, 119 Pac. 4 2374 Snowball, Estate of, 157 Cal. 301, 107 Pac. 598 2723, 2728, 2735, 2742, 2743, 2751, 2752, 2756, 2761 Snowball, Guardianship of, 156 Cal. 235, 240, 104 Pac. 444, 466 2219, 2235, 2239, 2240 Snowball v. Snowball, 164 Cal. 476, 129 Pac. 785 2736 Somers v. Somers, 27 S. Dak. 500, 131 N. W. 1091 2199 South End Warehouse Co. v. Lavery, 12 Cal. App. 449, 107 Pac. 1008 2573 Southern Surety Co. v. Barney, 34 Okla. 552, 126 Pac. 748 2257, 2258 Shade v. Morton, 28 Okla. 384, 114 Pac. 724 2247, 2254 Spangenberg v. Spangenberg, 19 Cal. App. 439, 126 Pac. 379 . . 2213, 2548, 2555, 2565 Spencer v. Lyman, 27 S. Dak. 480 2445 Spokane, City of, v. Costello, 57 Wash. 183, 106 Pac. 767 2423 Spreekels, Estate of, 162 Cal. 559, 123 Pac. 371 2537, 2551, 2553, 2566, 2633, 2637, 2638, 2644, 2645, 2659, 2660, 2667, 2684 Spreekels v. Spreekels, 21 Haw. 556 2641 Srouf e V. Srouf e, 74 Wash. 639, 134 Pac. 473 2252 Stanford v. Gray, — Utah — , 129 Pac. 428 2223, 2225 State V. District Court, 41 Mont. 357, 109 Pac. 441 2843 State V. Bell, 58 Wash. 575, 109 Pac. 51, 52 2223, 2225 State V. Beslin, 19 Ida. 185, 112 Pac. 1053 2235 State V. First Nat. Bank, 61 Or. 551, 123 Pac. 714 2214, 2286 State V. Kelley (S. Dak.), 143 N. W. 953 2192 State V. Kline, 91 Kan. 416, 137 Pac. 936 2834 State V. McDonald, 55 Or. 419, 104 Pac. 972, 973 2111, 2212, 2214, 2215 State V. Eeynolds, 60 Wash. 12, 110 Pac. 634 2225 State V. District Ct., 38 Mont. 166, 99 Pac. 294 2219, 2269, 2271 State V. District Court, 41 Mont. 369, 109 Pac. 441 2284 State V. District Court, 42 Mont. 182, 111 Pac. 719 2460 State V. District Court, — Mont. — , 140 Pac. 733 2302, 2322 State ex rel. Davis, 88 Kan. 849, 129 Pac. 1197 2£3o State ex rel. Wood v. Superior Court, 76 Wash. 27, 135 Pac. 496. . 2719 State V. Superior Court, 52 Wash. 149 2496, 2765 Statler's Estate, In re, 58 Wash. 199, 108 Pac. 433, 434 2405, 2709 Stead V. Curtis, 205 Fed. 439 2287, 2704, 2713, 2762, 2763 Steele v. Kelley, 32 Okla. 547, 122 Pac. 935 2447, 2560 Sterling v. Cole, 12 Cal. App. 93, 106 Pac. 602 2424 Stevens v. Carroll, 64 Or. 417, 129 Pao. 1045 2689 Stevens v. Meyers, 62 Or. 372, 121 Pac. 438, 443 2595, 2601, 2605 Stevens v. Myers, 62 Or. 399, 126 Pac. 30 2282 Stevens v. Sup. Ct., 155 Cal. 148, 99 Pao. 512 2515 Stixrud's Estate, In re, 58 Wash. 339, 109 Pac. 317 2837 Stone V. Bayley, — Wash. — , 134 Pac. 825 2404 XXVI TABLE OF CASES. Pages Stone V. Marshall, 52 Wash. 375, 100 Pae. 858 2204 Strachan, Estate of, 166 Cal. 162, 135 Pae. 296 2737, 2739, 2752, 2756, 2762 Strand v. Stewart, 51 Wash. 685, 99 Pae. 1029 2402, 2591, 2623, 2641 Stratton's Estate v. Pinnerty, — Colo. — , 140 Pae. 797 2432 StuU V. Benedict, 10 Cal. App. 619, 102 Pae. 961 2254 Sturgeon v. Culver, 87 Kan. 404, 124 Pae. 419 2446 Sulloway v. SuHowayj 160 Cal. 508, 117 Pae. 522 2326 Sutro, Estate of, 155 Cal. 727, 102 Pae. 920 2663 Swall, In re, 36 Nev. 171, 134 Pae. 96 2239 Swan V. Walden, 19 Cal. App. 127, 124 Pae. 857 2361, 2380 Syerley's Estate, In re, 87 Kan. 307, 124 Pae. 406 2287 T Taylor v. Hilton, 23 OHa. 354, 100 Pae. 537 2702 Tennant v. John Tennant Memorial Home, 47 Cal. Deo. 509, KLO Pae. 242 2624 Teynor v. Heible, 74 Wash. 222, 133 Pae. 1 2789 Thateher v. Copeca, — Wash. — , 134 Pae. 925 2568 Thomas v. Williams, 80 Kan. 632, 103 Pae. 772 2415, 2448, 2454, 2456 Thomas, Estate of, 155 Cal. 488, 101 Pae. 798 2752, 2759 Thompson v. Parnell, 81 Kan. 119, 105 Pae. 502 2288, 2290, 2622 Thompson's Estate, In re, 26 S. Dak. 546, 128 N. W. 1127 2199 Thorson v. Hooper, 57 Or. 75, 109 Pao. 389 2483, 2503, 2573 Tilton, Guardianship of, 15 Cal. App. 244, 114 Pae. 594 2261, 2270, 2271, 2275 Timken, Estate of, 158 Cal. 51, 109 Pae. 608 2839 Title G. and S. Co. v. Slinker, 35 Okla. 128, 128 Pae. 696 2250, 2252, 2258 Title Ins. and Trust Co. v. IngersoU, 158 Cal. 474, 111 Pae. 360.. 2805 Toffler V. Kessinger, 80 Kan. 549, 102 Pae. 1097 2522 Towle V. Towle, 81 Kan. 675, 107 Pae. 228 2375 Treadway v. Veterans' Home, 14 Cal. App. 75, 111 Pae. Ill 2335 Treat, Estate of, 162 Cal. 250, 121 Pae. 1003 2349, 2350, 2352, 2353, 2354, 2355 Tresider, Estate of, 70 Wash. 15, 125 Pao. 1035, 1037 2701, 2741 Trower v. City. and County of San Pranciseo, 157 Cal. 762, 109 Pae. 617 2487, 2521 Tueker v. Tuoker, 21 Colo. App. 94, 121 Pae. 127 2407 Tuckerman v. Currier, 54 Colo. 25, 129 Pae. 214 2630 Turner v. Turner, 31 Okla. 272, 125 Pae. 730 2453 Twist V. Twist, — Kan. — , 139 Pao. 377 2649 ■0 Union Oil Co, v. Stewart, 158 Cal. 149, 110 Pae. 313 2800 U. S. Pid. & G. Co. V. Nash, 20 Wyo. 65, 121 Pao. 544 2258, 2259 TABLE OF CASES. XXvii Pages V. S. Fid. & G. Co. V. Parker, 20 Wyo. 29, 121 Pae. 536 2258, 2259 U. S. rid. and G. Co. v. People, 44 Colo. 557, 98 Paxj. 833, 834. . . 2405, 2429 V Vanderpool v. Vanderpool, — ■ Mont. — , 138 Pae. 773 2423 Vaughan v. Brown, 81 Kan. 1, 105 Pae. 30 2343 Volker Seeweroft Lumber Co. v. Vanee, 36 Utah 348, 103 Pae 974 2376 W Waleh V. Orrell, 53 Colo. 361, 127 Pae. 141 2711 Walden, Estate of, 166 Cal. 446, 137 Pae. 35 2212, 2544, 2562 Walker, Estate of, 160 Cal. 547, 117 Pae. 510 2562, 2707 Wall V. Brown, 162 Cal. 307, 122 Pae. 478 2361, 2365, 2369 Ward V. Magaha, 71 Wash. 679, 129 Pae. 397 2321, 2430, 2475 Warner, Estate of, 167 Cal. 686, 140 Pae. 595 2308, 2312, 2797 Washburn, Estate of, 11 Cal. App. 735, 106 Pae. 415 2635, 2692 Watson V. MeLeueh, 57 Or. 446, 110 Pae. 484 2627 Wattenbarger v. Wattenbarger, 39 Okla. 531, 135 Pae. 1142 2764 Waverly v. Eoss, 90 Kan. 433, 133 Pae. 539 2413 Weatherall v. Weatherall, 56 Wash. 344, 105 Pae. 825 2862 Weatherall v. Weatherall, 63 Wash. 526, 115 Pae. 1079 2601 Weber, Estate of, 15 Cal. App. 224, 114 Pae. 597 2595, 2598, 2601, 2604, 2608, 2679, 2723, 2726, 2735, 2736, 2737, 2738, 2739, 2743, 2746, 2758, 2769, 2771 Weisner v. Weisner, 89 Kan. 352, 131 Pae. 608 2685 Welch V. Barnett, 34 Okla. 166, 125 Pae. 473 2721 Wells, In re, 60 Wash. 518, 111 Pae. 778, 779 2194, 2234 Wendl V. Tueost, — Or. — , 136 Pae. 1 2733 Wentworth v. McDonald, — Wash. — , 129 Pae. 504 2360, 2362 West, Estate of, 162 Cal. 352, 122 Pae. 953 2849 West V. Mears, 17 Cal. App. 718, 121 Pae. 700 2559 Western Newspaper Union v. Thurmond, 27 Okla. 261, 111 Pao. 205 2495 Western Pae. E. Co. v. Godfrey, 166 Cal. 346, 136 Pae. 284 2690 Western States Life Ins. Co. v. Lockwood, 166 Cal. 185, 135 Pae. 496 2407, 2408, 2409 Whalen v. Webster, 159 Cal. 260, 113 Pae. 373 2652 White V. Bower, — Colo. — , 136 Pae. 1054 2606 Whitley v. Spokane Elwy. Co., 23 Ida. 642, 132 Pae. 123, 127. .2481, 2484 Whitney v. AVhitney, 61 Or. 314, 122 Pae. 290 2673 Wilkie V. Bailey, 74 Wash. 241, 133 Pae. 388 2309. Willard v. Mohn, 24 N. Dak. 391 2403 Williams v. Campbell, 84 Kan. 46, 113 Pae. 800 2860 Williams v. Campbell, 85 Kan. 631, 118 Pae. 1074 2202, 2593, 2688 Williams v. McDougald, 23 Cal. App. 285, 137 Pae. 1067 2841 Williams, Estate of, 23 Cal. App. 285, 137 Pae. 1067 2843 XXVlll TABLE OP CASES. Pages "Williams' Estate, In re, 47 Mont. 325, 132 Pae. 423 2493, 2516 Wills V. Wills, 166 Cal. 529, 137 Pac. 249 2560, 2564 Wilson V. Linder, 18 Ida. 438, 110 Pac. 274, 138 Am. St. 213. .2635, 2674, 2693 Wilson V. Mitchell, 48 Colo. 454, 111 Pac. 26 2223, 2225 Wilson V. Morton, 29 Okla. 745, 119 Pae. 213 2241 Wilson V. Peterson, — Or. — , 136 Pac. 1187 2372, 2376 Wilson V. Wilson, 55 Colo. 70, 132 Pac. 70 2212, 2285, 2348, 2349 Winbigler, Estate of, 166 Cal. 434, 137 Pac. 1 2296, 2303 Winterbsrg v. Vandervorste, 19 N. Dak. 423 2446 Winters v. Winters, 34 Nev. 324, 123 Pac. 17 2199 Wirringer v. Morgan, 12 Cal. App. 26, 106 Pac. 425 2550, 2837 Witt's Estate, In re, 74 Wash. 172, 132 Pac. 1012 2510, 2522 Wolfe V. Mueller, 46 Colo. 335, 104 Pac. 489 2395 Womersley, Estate of, 164 Cal. 85 2647, 2654 Wood V. James, 15 Cal. App. 253, 114 Pac. 587 2421, 2427 Wood V. Pohrsson, 21 N. Dak. 370 2457 Wood, Estate of, 159 Cal. 466, 114 Pac. 992 2243, 2244, 2246, 2254, 2255 Woodward v. De Graffenreid, 36 Okla. 81, 131 Pac. 162 2207 Wortham v. John, 22 Okla. 562, 98 Pac. 347 2234 Wright V. Merrill, — Ida. — , 140 Pac. 1102 2308 Wright V. Stage, 86 Kan. 475, 121 Pac. 491 2412 Wright V. State, 83 Kan. 445, 111 Pac. 467 2426 T Yoell, Estate of, 160 Cal. 741, 117 Pae. 1047 2291, 2350, 2352, 2708, 2709, 2710 z Zanone v. Sprague, 16 Cal. App. 333, 116 Pac. 989 2205, 2364, 2365, 2370, 2386 ZoUikofer, Estate of, 47 Cal. Dec. 234, 138 Pae. 995 2314, 2701, 2702, 2718 TABLE OF NEW STATUTES AND AMENDMENTS TO CODES The following is a table of the statutes and amendments to Codes relating to the matters in question which have been enacted in the various states covered by this work since the year 1908, with the exception of the State of California, as to which they are printed in extenso in their appropriate ■ places throughout this volume. 1909. ALASKA. COMPILED LAWS OF THE TERRITORY OF ALASKA, 1913. Section 367, page 253 — Insane persons. Marshal charged with transportation and custody of — to deliver them to asylums. March 3, 1909. 35 Stat. L. 840-841. Chapter 786, section 3. Chapter 39, page 371 — Care and custody of the Insane. Sections 830-832a. February 6, 1909. 35 Stat. L., 601. 1913. ALASKA. SESSION LAWS. Disposition of estates of persons who have disappeared — Chapter 60, page 155. Wills executed without the territory — Chapter 61, page 155. Amending chapter 19 of the compiled laws of Alaska relating to escheats — Chapter 73, pages 278-83. The sections amended are 608 to 615 inclusive. (xxix) XXX TABLE OF NEW STATUTES 1912. LAWS OF ARIZONA. FIRST LEGISLATURE OF THE STATE OF ARIZONA. Inheritance tax — Chapter 15, page 35. (Special session.) 1913. LAWS OF ARIZONA. REVISED STATUTES OF ARIZONA. PART rv. Probate Procedure, Etc. (Chapter 49, Laws 1913. Second special session.) Page 394. New and amended sections*: Probate Procedure, 741 (1303), 743 (1305), 746 (1308), 754 (1318), 794 (1372), 795 (1373), 803 (as mod.), 812 (as mod.), 841 (1430), 842 (as mod.), 866 (1465), 869 (1468), 870 (1469), 882 (1493), 903 (1514), 913 (1527), 919 (1536), 934 (1552), 958 (1577), 963 (1578), 964 (1578), 965 (1578), 977 (1597), 978 (1598), 980 (1600), 981 (1601), 983 (1603), 984 (1604), 986 (1606), 1007 (1632), 1008 (1633), 1014 (1639), 1034 (as mod.), 1042 (1670), 1055 (1699), 1056 (1700), 1057 (1701), 1058 (1702), 1059 (1703), 1060 (I7031/2), 1090 (1723), 1094 (homestead new sec- tion), 1100 (mod. of 1402), 1106 (1747). Guardian and Ward, 1110 (1751), 1136 (1767), 1141 (1772), 1160 (1791), 1167 (1798), 1169 (1799), 1180 (1810 as mod.), 1188 (adoption Oregon Laws, Bellinger & Cotton's Ann. Codes and Stat. 1901), 1189 (Oregon), 1190 (Ore- gon mod.), 1191 (Oregon mod.), 1192 (as mod.), 1193 (as mod.), 1197 (Oregon). Appeals, 1227 (963 as mod.), 5030 (see Inheritance Tax Law 1912). Homestead, 3636 (mod. of 2883). Guardian and Ward, 646 (new section), 1250 (new section). Executors and Ad- ministrators, 4907 (chapter 63, Laws 1913, third special session), 1251 (new section), 556 (R. L. Minn. 1905, section 4270). Escheat, 1511 (new section), 1512 (new section). *The figures within brackets are the numbers of the sections of the Code of Civil Procedure of the state of California which corre- spond to the section given by the Revised Statutes of Arizona. The words "as modified" in brackets mean that the section is a modi- fication of the section of the Revised Statutes of the same number or of another number given. AND AMENDMENTS TO CODES. XXxi 1909. COLORADO. SESSION LAWS. An act relating to wills — Chapter 219, approved April 23, 1909. An act amending the Inheritance Tax Law — Chapter 193, approved April 17, 1909. 1910. COLORADO. NOTHING APPLICABLB3. 1911. COLORADO. SESSION LAWS— EIGHTEENTH SESSION. An act amending the laws relating to the filing of homesteads- Chapter 148, approved February 20, 1911. An act amending the law as to hearing on final settlement of estates- (see 7241 Revised Statutes 1908) — Chapter 131, approved May 29, 1911. An act relating to the binding of orphan children — Chapter 80, approved June 2, 1911. An act concerning the bonds of executors, administrators, guar- dians and conservators — Chapter 88, approved June 2, 1911. An act relating to the adoption of children and heirs at law — Chap- ter 1, approved May 28, 1911. An act relating to the sale or mortgage by administrators of real estate — Chapter 200, approved May 29, 1911, 1913. COLORADO. SESSION LAWS— NINETEENTH SESSION. An act relating to wills — Chapter 164, April 30, 1913. An act imposing an inheritance tax — Chapter 136, May 14, 1913. XXXU TABLE OF NEW STATUTES An act relating to the settlement of estates of deceased persons — Chapter 81, April 13, 1913. An act for the protection of children — Chapter 50, April 12, 1913. An act to amend an act entitled "An Act in Relation to Probate Matters"— Chapter 1, May 1, 1913. 1909. IDAHO. SESSION LAWS. An act providing for the protection of orphan, etc., children — Page 38. 1911. IDAHO. SESSION LAWS. An act relating to the delivery of property and the discharge of executors and administrators — Page 619. 1913; IDAHO. SESSION LAWS. An act authorizing the refunding of inheritance tax in certain cases — Page 334. 1909. KANSAS. An act concerning the Code of Civil Procedure, section 709, relat- ing to writs of habeas corpus in favor of guardians and for protec- tion of infants and insane persons. — Chapter 182, page 460. Section 419, action by personal representatives for damages for wrongful death — Chapter 182, page 403. AND AMENDMENTS TO CODES. XXXIU An act concerning the filing of claims against estates in the pro- bate court — Chapter 109, page 209. An act to provide for the assessment and taxation of legacies and successions — Chapter 248, page 595. 1911. KANSAS. An act to amend various sections of the General Statutes of Kan- sas, 1909, relating to the settlement of the estates of deceased per- sons, and repealing said original sections — Chapter 188, page 319. An act relating to wills executed outside the state — Chapter 336, page 597. An act amending certain sections of chapter 49 of the General Statutes of Kansas, 1909, concerning guardians and wards — Chapter 200, page 351. An act relating to the defense of guardian of infants and persons of unsound mind — Chapter 228, page 405, 1913. KANSAS. An act to repeal chapter 248 of the Session Laws of 1909 providing for the assessment and taxation of legacies and successions — Chapter 330, page 562. An act fixing the amount of bond to be required of executors, etc., when such bonds are given by a surety company — Chapter 195, page 312. An act relating to the settlement of estates of deceased persons — Chapter 196, page 313. 1909. MONTANA. An act to authorize public administrators to summarily settle estates under $200— Chapter 134, page 199. An act relating to witnesses with regard to transactions between witness and a deceased person — Chapter 68, page 81. XXXIV TABLE OF NEW STATUTES 1911. MONTANA. An act relating to the appointment of guardians of inebriates and other incompetents with property — Chapter 139, page 401. 1913. MONTANA. An act to amend section 7641 of the Revised Codes of Montana of 1907 relating to accounts of executors and administrators — Chapter 122, page 470. An act relating to the distribution of the estates of deceased persons — Chapter 54, page 104. An act relating to proceedings for the recovery of escheated prop- erty — Chapter 132, page 483. 1909. NEVADA. NOTHING APPLICABLE. 1911-1912. NEVADA. SPECIAL SESSIONS. An act to amend an act entitled "An Act to provide for the ap- pointment of guardians and to prescribe their duties," approved March 11, 1899— Chapter 69, paGe 71. An act to amend section 105 of an act entitled "An Act to regulate the settlement of the estates of deceased persons," approved March 23, 1897— Chapter 33, page 28. An act to facilitate the execution of deeds and conveyances of property of persons who are bound by bond or contract to convey real estate or transfer personal property, but who die before making the conveyance or transfer, authorizing the district court having jurisdiction over the estate to decree that the executor or adminis- AND AMENDMENTS TO CODES. XXXV trator complete the execution of the contract — Chapter 152, page 315. An act supplementary to an act entitled "An Act to regulate the settlement of the estates of deceased persons," approved March 23, 1897— Chapter 155, page 316. 1913. NEVADA. An act to amend an act entitled "An Act to provide for the ap- pointment of guardians and to prescribe their duties," approved March 11, 1899 — Chapter 34, page 27. An Inheritance Tax Law — Chapter 266, page 411. An act to amend an act entitled "An act' to regulate the settle- ment of the estates of deceased persons," approved March 23, 1897 — Chapter 36, page 28. An act to amend an act entitled "An Act to amend section 1 of an act to amend an act entitled 'An Act to regulate the settlement of estates of deceased persons,' approved March 23, 1897, and as amended and approved March 16, 1899, approved March 6, 1901"; the act amended hereby having been approved March 23, 1903, and being section 6116 of the Revised Laws of Nevada (1912) — Chapter 20, page 56. 1909. NEW MEXICO (TERRITORY). An act In regard to garnishment proceedings, section 28, as to gamisheeing legacies in hands of executors — Chapter 63, page 176. 1912. NEW MEXICO (STATE). An act relative to publications, section 5, affecting publication of probate notices — Chapter 49, page 77. XKXVl TABLE OF NEW STATUTES 1913. NEW MEXICO. NOTHlisTG APPLICABLE. 1911. NORTH DAKOTA. An act to amend section 5187 of the Revised Codes of 1905, relat- ing to order of succession — Cliapter 223, page 339. An act to provide for tlie ascertaining and giving notice of the title of the lands to the heirs of the deceased persons and establish- ing the right of heirship to real property and to provide a method of procedure therefor and to repeal sections 8040, 8041, 8042, 8043, 8044, and 8045 of the Revised Codes of North Dakota— Chapter 220, page 335. An act to confirm title to real estate sold by decedents In their lifetime under contract, conveyed pursuant to article 8 of chapter 6 of the Probate Code of North Dakota as estates now closed, and not approved by the county judge — Chapter 214, page 331. An act relating to endorsement of allowance or rejection of claims by executors or administrators and providing for notice thereof — Chapter 215, page 331. An act relating to rejecting claims and providing how suit is instituted— Chapter 216, page 332. An act relating to time to apply for letters of administration and providing when the statute of limitations shall run against claims against decedents — Chapter 217, page 333. A.n act relating to the disposition of unclaimed shares of estate in county court — Chapter 224, page 341. An act prohibiting public administrators from acting as attorneys in the estates of decedents — Chapter 234, page 350. An act relating to the adoption of minor children and children who have been abandoned — Chapter 3, page 3. 1909. NORTH DAKOTA. An act to amend chapter 119 of the Sessions Laws of 1907 in re- gard to evidence as to statements and transactions with decedents — Chapter 109, page 117. AND AMENDMENTS TO CODES. XXXVll An act to amend section 8184 of the Revised Codes of North Dakota for 1905, relating to the commissions to be allowed adminis- trators and executors where no provision is made in the will — • Chapter U8, page 125. ,= ^' 1913. ■ NORTH DAKOTA. An act providing for taxation and fixing the rate in taxation of inheritances, devises, bequests, etc., etc. — Chapter 185, page 267. An act relating to the approval of mortgages executed by an ad- ministrator, executor, or guardian — Chapter 130, page 170. 1909. OKLAHOMA. Compiled Laws of Oklahoma, 1909, Snyder, covering all the laws of the state of Oklahoma up to and including those of the second legislature of 1909 relating to the topics embraced in this work. 1911. OKLAHOMA. SESSION LAWS. An act relating to the conferring upon the commissioner of chari- ties and corrections power to act as guardian in certain cases — Chapter 25, page 45. An act relating to the adoption of an illegitimate child by its father —Chapter 73, page 169.' ^ ; Note — ^As to adoption of code, see further, Revised Laws of Okla- homa, 1910, approved March 15, 1911 — Statutes, page 192. 1913. OKLAHOMA. An act authorizing administrators, executors, or guardians to mortgage real estate, amending article 11 of chapter 86, Snyder's XXXVIU TABLE OP NEW STATUTES 1909 Compiled Statutes of the state of Oklahoma— Chapter 66, page 103. An act limiting guardianships — Chapter 172, page 391. An act relating to the appointment of guardians for minors — Chapter 29, page 59. An act legalizing the transfer of certain probate matters and pro- ceedings for protection of minors' estates — Chapter 208, page 460. 1909. OREGON. An act to amend sections 2 and 16 of the Inheritance Tax Law of 1903— Chapter 15, page 60. An act to amend section 1220 of Bellinger & Cotton's Annotated Codes and Statutes, relating to distribution and payment of legacies — Chapter 26, page 68. An act to amend section 797 of Bellinger & Cotton's Annotated Codes and Statutes, providing that an agreement by an executor or administrator to pay the debts of his testator or intestate out of his own estate must be in writing — Chapter 27, page 69. An act to amend an act approved February 3, 1905, empowering executors and administrators to execute deeds and fully carry out contracts for sale of property made by deceased to same extent as he could have done if living — Chapter 125, page 187. An act to amend section 2 of chapter 148 of the General Laws of Oregon for 1907, relating to the escheating of moneys of decedents on deposit in banks — Chapter 36, page 75, 1911. OREGON. An act providing for the escheating of certain moneys belonging to the patients who were inmates of the Oregon State Insane Asylum and have died or escaped from said institution — Chapter 69, page 108. An act to amend section 7083 of Lord's Oregon Laws, the same being section 5316 of Bellinger & Cotton's Annotated Codes and Statutes, relating to the adoption of children — Chapter 11, page 29. AND AMENDMENTS TO CODES. XXXIX 1909. SOUTH DAKOTA. An act amending sections 38 and 39 of the Revised Probate Code, 1903, of the state of South Dakota — Chapter 2, page 2. An act to amend section 3224 of chapter 29 of the Political Code of South Dakota, entitled "Homestead and Conveyance Thereof" — Chapter 136, page 211. An act to amend section 271 of article 1, chapter 10 of the Revised Probate Code of 1903, relating to the liabilities and compensation of executors and administrators — Chapter 24, page 26. An act entitled "An Act providing the mode of procedure in rela- tion to escheats and for the reduction of escheated property into the possession of the state" — Chapter 104, page 177. 1911. SOUTH DAKOTA. An act entitled "An Act relating to the publication of notice in the probate court" — Chapter 204, page 292, 1913. SOUTH DAKOTA. An act entitled "An Act providing for taxation of and fixing the rate of taxation on inheritances, devises, bequests, etc., etc." — Chapter 243, page 337. An act entitled "An Act to provide for the determination of heir- ships, the share of such heirs respectively in and to certain real estate by action in the circuit court" — Chapter 231, page 313. An act to amend sections 153, 155, and 156 of the Probate Code relating to homesteads and procedure in county court — Chapter 236, page 321. An act entitled "An Act to amend sections 174, 175, and 176 of the Revised Probate Code of 1903, relating to claims presented to executors and administrators" — Chapter 207, page 288. An act entitled "An Act to confer on county courts authority to declare the termination of life estates and interests, liens, and in- cumbrances upon real property In certain cases" — Chapter 176, page 217. An act relating to the admission of testimony as to transactions had with a testator or intestate — Chapter 371, page 610, Xl TABLE OF NEW STATUTES 1909. UTAH. NOTHING APPLICABLE. 1911. UTAH. An act relating to bastards and providing for security for the support of illegitimate children — Chapter 62, page 84. 1913. UTAH. An act relating to leasing and options to purchase mining property helpnging to the estates of deceased persons or- wards- under guard- ianship — Chapter 67, page 107. 1909. WASHINGTON. An act amending section 4828 of Ballinger's Annotated Codes and Statutes of Washington in relation to recovery of damages for the death of a person caused by the wrongful act or neglect of another — Chapter 129, page 425: An act relating to the liability of homesteads to execution or forced sale in certain cases — Chapter 44, page 71. An act relating to the appointment of guardians — Chapter 118, page 408. 1911. WASHINGTON. An act relating to wills executed without the state of Washington — Chapter 8, page 9. An act to amend the inheritance tax law of 1907 — Chapter 19, page 60. AND AMENDMENTS TO CODES. xli 1913. WASHINGTON. An act providing for the charging by executors, administrators, and guardians of premiums on surety company bonds — Chapter 49, page 138. 1909. 'WYOMING. SESSION LAWS. An act to amend and re-enact section 3449 of the Revised Statutes of 1899, relating to actions by representatives of deceased persons, the amount to be recovered in such action, the distribution thereof, and the time within which such actions shall be commenced — Chapter 3, page 5. An act to amend and re-enact sections 3901, 3902, and 3908 of the Revised Statutes of 1899, relating to homesteads — Chapter 102, page 149. 1911. WYOMING. SESSION LAWS. An act to amend and re-enact section 5695 of the Wyoming Com- piled Statutes of 1910, relating to the partial distribution of estates — Chapter 37, page 48. An act entitled "An Act fixing the compensation of executors, administrators, and their attorneys, and repealing sections 5580 and 5581, Wyoming Compiled Statutes 1910" — Chapter 16, page 17. An act to amend and re-enact section 3138 of the Wyoming Com- piled Statutes of 1910 relating to escheats and forfeitures — Chapter 57, page 76. Xlii TABLE OF NEW STATUTES 1913. WYOMING. SESSION LAWS. An act relating to the probate of estates of nonresidents — ■ Chapter 31, page 25. An act to amend and re-enact section 4238 of Wyoming Compiled Statutes of 1910 relating to the powers of abstract and loan com- panies and the manner of their appointment and qualification as receivers, trustees, administrators, executors, and guardians — Chapter 47. page 39. PART I. ADOPTION, SUCCESSION AND ESCHEAT. CHAPTER I. ADOPTION. § 4. Adoption of Children. Consent Necessary, When. LAW OF ADOPTION. 1. Nature of proceedings. 2. Essentials of adoption. 3. Who may adopt. 4. Consent to adoption. 5. Examination of parties. Welfare of child. 6. Order of adoption. 7. Abandoned child. 8. Indian children. 9. Illegitimate children. 10. Evidence of adoption. 11. Effect of adoption. Divorce proceedings, etc. 12. Attacking the order. 13. What will not invalidate proceedings. 14. Adoption in another state. 15. Inheritance. 16. Specific performance. 17. Hawaii. § 4. Adoption of children. Consent necessary, when. A legitimate child can not be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or cruelty, and for either cause divorced, or adjudged to be habitually intemperate in the use of intoxicants, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. Probate Sup. 1. (2187) 2188 PROBATE LAW AND PEACTICB. [Abandoned child.] Neither is consent of any parent neces- sary in ease of any abandoned child. Any child deserted by its parents without provision for their identification, or re- linquished by its parent or parents for the purpose of adop' tion expressed in writing signed and acknowledged by such parent or parents before an officer authorized to take ac- knowledgments, or before the secretary of any organization or society engaged in the work of placing dependent or deserted children into homes in this state, which organiza- tion or society has obtained a permit therefor, duly executed in writing, from the state board of charities and correc- tions, shall from the date of such act of desertion or of such relinquishment be deemed to be an abandoned child within the meaning of this section. Any child left in the care or custody of another by its parent or parents, without any provision for its support, for the period of one year, may after such notice to the parent or parents residing Avithin the state and to such other relatives of said child residing within the county as the court shall require, be determined by order of the juvenile court of the county in which said child was so left to be an abandoned child within the terms of this section. [Child in orphasn asylum.] Any abandoned child within the meaning of this section, or any child whose parent or parents have been judicially deprived of its custody on ac- count of cruelty or neglect, maintained by or in the custody of any orphan asylum within this state, any charitable organ- ization or society receiving state aid or receiving commit- ments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. Any orphan child for whose siipport no provision has been made by any person for a period of one year, but who has been maintained during said j^ear by or in the custody of any orphan asyluni within this state, any charitable organization or society receiving state or re- ceiving commitments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. — Kerr's Cyc. Civ. Code (Kerr's Cum. Supp., p. 865), § 224. ADOPTION. 2189 LAW OF ADOPTION. 1. Nature of proceedings. Adoption is a proceeding un- known to the common law and depends upon the statutes of the different states. The courts of one state can not take judicial notice of the adoption laws of other states, and the statutes being in derogation of the common law must be strictly construed: Long v. Dufur, 58 Or. 162, 113 Pac. 59. The adoption of a child is a proceeding unknown to the common law and exists now only by virtue of the statutes which expressly prescribe the conditions under which an adoption may be legally effective : Matter of Cozza, 163 Cal. 514, 126 Pac. 161. (See page 11.) 2. Essentials of adoption. (See page 11.) 3. Who may adopt. (See page 12.) 4. Consent to adoption. Parental consent is absolutely essential to confer jurisdiction to make an order of adoption subject to the conditions provided by the statute. When the child has come under the control of the juvenile court, that fact can be considered, only for the purpose of determine ing desertion or abandonment by the parents. The court has no discretion to make an order of adoption regardless of the consent or wishes of the parent and merely that the interest of the child will be promoted thereby : In re Cozza, 163 Ca,l. 514, 126 Pac. 161. As the act of adoption is to sever absolutely the legal relation between the parents and child, to destroy their reciprocal relations, and create entirely new ones between the adopted parents and the child, the law, recognizing the natural and sacred rights of natural parents to their chil- dren, will permit this to be done only with the consent of the parents, unless under exceptional conditions, which it itself prescribes, such consent is declared unnecessary : Matter of Cozza, 163 Cal. 514, 126 Pac. 161. Where a divorce has been granted for cruelty, and the custody of a child is av/arded absolutely to the innocent party, the consent of the guilty one is not required in adop- 2190 PROBATE LAW AND PRACTICE. tion proceedings under the provisions of section 224 of the Civil Code ; however, this section does not interfere with the orders of the court in divorce proceedings concerning the custody of the children, nor does it dispense with the consent of the parent to whom the custody of the child was awarded in the divorce proceeding: Matter of Cozza, 16o Cal. 514, 126 Pac. 161. Under the California statutes, consent is made absolutely essential to confer jurisdiction on the superior court to make an order of adoption, unless the conditions or exceptions exist especially provided by the statute itself and which render such consent of the parents unnecessary. Unless such consent is given, or for the exceptional causes expressly enumerated is dispensed with, the court has no discretion in the matter: Matter of Cozza, 163 Cal. 514, 126 Pac. 161. "Where an order permitting the adoption of a minor child, without the consent of its mother, is appealed from., the ap- pellate court can not direct the restoration of the child to its mother, on reversal of the order, but her remedy is to obtain possession of the child under habeas corpus proceed- ings: Matter of Cozza, 163 Cal. 514, 126 Pac. 161. (See page 12.) REFERENCES. Constitutionality of statute permitting adoption of child without consent of parents, see note 18 L. R. A. (N. S.) 926, 927. Validity of adoption without consent of natural parents, see note 30 L. R, A. (N. S.) 146. 5. Examination of parties. Welfare of child. In a peti- tion for the adoption of a minor the all important factor in the determination of the question is the welfare of the child. The matter of adoption rests in the sound discretion of the court and in the exercise of that discretion information from all proper sources should be sought by the one who must determine the matters so momentous to the infant. A denial of a petition to adopt will not be disturbed on appeal with- out the showing of a very grave abuse of discretion by the court: In re Bewley, a minor, Cal. Dec. Jan. 12, 1914, p. 80, 138 Pac. 689 ; In re Fields, 56 Wash. 259. (See page 13.) ADOPTION. 2191 6. Order of adoption. (See page 14.) 7. Abandoned child. In deciding the right to a child as between a mother who had abandoned it and adoptive par- ents, the pecuniary standing of the parties is not to be con- sidered ; but the welfare of the child is of grave importance and may be made controlling: In re Fields, 56 Wash. 259, 105 Pac. 466. Under California Civil Code, section 224, providing that a child may be adopted without the consent of its parents, where it has been abandoned by them, the "abandonment," as contemplated in this section, is an intention to do so, express or implied from the conduct of the parent respecting the child: Matter of Cozza, 163 Cal. 514, 126 Pac. 161. (See page 14.) 8. Indian children. (See page 15.) 9. Illegitimate children. An illegitimate child is suffi- ciently received "into the family" to establish its adoption where it is received in the house in which the father has his fixed place of abode, notwithstanding that he is unmarried and lives there alone for long periods of time : Estate of De Laveaga, 165 Cal. 607, 133 Pac. 307. Where the right of succession to the estate of a deceased person depends upon the legitimation of illegitimate children of the deceased under section 230 of the Civil Code, and an adversary verdict was found upon questions submitted, that deceased was the father of each child, that he publicly ac- knowledged each during its minority as his own child, that he received each into his family as his own child and that he otherwise treated each child during its minority as if it were his legitimate child, and the trial court adopted these findings as its own, such findings are sufficient to establish the right of succession; and the main question first to be considered is the assigned insufficiency of the evidence to support them : Estate of Gird, 157 Cal. 534, 108 Pac. 499. An illegitimate unmarried minor child can not be adopted under the laws of Oklahoma without the consent of the 2192 PROBATE LAW AND PRACTICE. mother: Allison v.^Brian, 26 Okla.-520, 109 Pac. 935. (See page 16.) 10. Evidence of adoption. The acknowledgment of a foster father who had previously adopted the infant, is necessary to the validity of an instrument of adoption under Code Iowa 1873, sections 2307, 2311, which required the acknowledgment of the parents in the manner of the ac- knowledgment of deeds: Long v. Dufur, 58 Or. 162, 113 Pac. 59. (See page 17.) . 11. Effect of adoption. Divorce proceedings, etc. The effect of an adoption under the California Civil Code is to establish the legal relation of parent and child, with all the incidents and consequences of that relation and necessarily implies that the natural relationship between the child and its parents is superseded, and as the adopted child has the -right to succeed to the estate of the adopting parent, so the adopting parent is entitled to inherit as a parent to the exclusion of the parent by blood, and the blood relationship is not revived by the death of the adopting parent prior to the death of the child: Estate of Jobson, 164 Cal. 315, 128 Pac. 938. In Kansas a child legally adopted takes the name of the adopting parent and is given the same personal rights and rights of inheritance as a natural child. The rights of an adopted child have not been in any way repealed or limited by the amendment in 1891 of the act relating to descents and distributions. The words "living issue" in that amend- ment were used in the sense of "living children," so that an adopted child of a prior deceased daughter of an intestate inherits through her adopted mother : Eiley v. Day, 88 Kan. 503, 129 Pac. 524. The natural parent of an adopted child has no parental rights over such child after its adoption and therefore can not take proceedings under Political Code, sections 3205, 3214, for the protection of the child from an improper guardian: State v. Kelley (S. Dak.), 143 N. W. 953. ADOPTION. 2193 "Where the probate court has granted a petition for the adoption of a child such order is final and appealable and the father of the child may maintain an appeal from the order even though in divorce proceedings the custody of the child had been awarded to the mother: Heydorf v. Cooper, 90 Kan. 511, 135 Pac. 518. Under the adoption acts of the state of Kansas, a child legally adopted takes the name of the adopting parents and is given the same personal rights and is entitled to the same rights of inheritance as a natural child: Eiley v. Day, 88 Kan. 503, 129 Pac. 524. The amendment of 1891 of the act concerning descents and distributions (Gen. Stats. 1909, Sec. 2952, Kan.) did not repeal or limit the rights conferred on an adopted child by the adoption act and to which he was entitled prior to said amendment : Eiley v. Day, 88 Kan. 503, 129 Pac. 524. After the legal adoption of a minor child by another per- son the parental obligations of its natural parents cease to exist, and they are no more legally liable for the mainte- nance, support and education of such child than would be a perfect stranger. It follows that an adopting parent may contract with the natural parents or with its mother and her second husband, to take care of, support and educate the child for compensation as freely and legally as such a contract could be made by the adopting parent with a stranger to the blood of such child: Mitchell v. Brown, 18 Cal. App. 117, 122 Pac. 426. In an action by the second husband of the mother of a child which had been legally adopted by the deceased, after the mother's divorce from its father, and which had been committed to the care of the mother and such second hus- band under an agreement for compensation, which action was brought for such compensation upon a rejected claim against the adopting parent's estate, and in which the evi- dence for the plaintiif was sufficient to make a prima facie . case for recovery, it was error to grant a nonsuit therein at the close of the plaintiff's evidence: Mitchell v. Brown, 18 Cal. App. 117, 122 Pac. 426. 2194 PROBATE LAW AND PRACTICE. It is held that, applying the principles of evidence to the motion for a nonsuit, the evidence for the plaintiff must be taken as showing that the agreement for compensation was with the plaintiff's husband as well as with his wife, the child's mother; that the care of the adopted child can not be presumed gratuitous; that an explanation of a payment of $1100 made to the mother after receiving the adopted child, not connected with compensation therefor, but in con- sideration of her relinquishment of a claim against a differ- ent estate, in which her mother and the adopting parent were interested, must be assumed as true; and that every favor- able inference and presumption from the evidence must be taken as true; and that the nonsuit can not be sustained: Mitchell V. Brown, 18 Cal. App. 117, 122 Pac. 426. The court properly allowed evidence on the cross-exam- ination of the plaintiff to show that the $1100 had been re- ceived from the adopting parent by the mother after she re- ceived the care of the child for the purpose of an inference that it was received in payment therefor, though the answer may show a purpose foreign thereto: Mitchell v. Brown, IS Cal. App. 117, 122 Pac. 426. (See page 17.) 12. Attacking the order. Where the court is satisfied of the fitness and propriety thereof a ruling authorizing an adoption will not be reviewed except for abuse of discre- tion, and where consolidated applications are heard for the adoption of an orphan by relatives of the mother, and for guardianship by relatives of the father, it is not an abuse of discretion to deny the adoption and grant the guardianship where both parties are suitable to have the care of the child : In re Wells, 60 Wash. 518, 111 Pac. 778. Secret removal of the child to another county by the mother and the institution in that other county of adoption proceedings without notifying the father, or the court, that divorce proceedings were pending in another court between the parents is a fraud upon the court granting the adoption which was properly set aside on application of the father: Miller v. Higgins, 14 Cal. App. 156. ADOPTION. 2195 "Where upon the granting of a divorce the custody of a child has been awarded to the mother, the father may main- tain an appeal from an order of the probate court granting a petition for the adoption of the child : Heydorf v. Cooper, 90 Kan. 511, 135 Pac. 578. (See page 18.) 13. What will not invalidate proceedings. "When under a decree of divorce the custody of the children is given to the mother the divorced father is not entitled to notice of proceedings for the adoption of one of the children : In re Beers, "Wash. , 139 Pac. 631. The construction of section 1696, Eem. & Bal. Code of the state of Washington, holding that a divorced father, custody of children being given to the mother, is not entitled to notice of adoption proceedings, is not unconstitutional for the right of a parent to the custody of a child is not an abso- lute right, but is subject to the right of the state to interfere in the interests of the child, and the father had had his day in court concerning the custody during the divorce proceed- ings : In re Beers, "Wash. , 139 Pac. 631. Evidence relating to the want of fitness of an adopting parent upon the hearing of a petition to set aside the order of adoption on the ground that the father had had no notice of the proceedings, the petition being granted on that ground, is inadmissible as the question of fitness may always be considered in another proceeding to determine what was for the best interests of the child: In re Beers, "\A''ash. , 139 Pac. 633. (See page 18.) 14. Adcption in another state. (See page 19.) 15. Inheritance. If an agreement of adoption by which the adopting parent "covenants and undertakes to give" the adopted child the same rights in her estate after her decease as though the child were her natural child, is not sufficient of itself to confer the right . of inheritance, the statute (Act 83, L. 1905) gives the agreement full force and effect in that regard by clothing the adopted child with the right of inheritance : Leialoha v. "Walters, 21 Haw. 304. 2196 PROBATE LAW AND PRACTICE. The words "living issue" as used in the amendment of 1891 of the act concerning descents and distributions were employed by the Kansas legislature in the sense of living children and hence an adopted child of a prior deceased daughter of an intestate does inherit a portion of the estate of such intestate through her adopting mother: Biley v. Day, 88 Kan. 503, 129 Pac. 524. Where the law under which a child is adopted limits its right of inheritance to the estate of the adoptive parents, such child can not, after the death of its adoptive father, inherit from the deceased brother of such adoptive father, or his other collateral kindred: Boaz v. Swinney, 79 Kan.. 332, 99 Pac. 621. An adopted child has no right of inheritance from its. adopted parents other than those given by the law under which it was adopted: Boaz v. Swinney, 79 Kan. 332, 99 Pac. 621. If the act of adoption confers upon the child the right to succeed to the estate of the adopting parent in like manner as a child of the blood, it must follow that, upon the death of the child, the adopting parent is entitled to inherit as a parent. To hold that, although the relation of parent and child existed between such parent in blood, and that such relation was supplanted by the new relation created by the adoption, but that nevertheless upon the death of the foster parent such former relation was revived, would be to make, rather than to construe, a statute. Once the conclusion is reached that the effect of adoption in the code is to substi- tute the adopting parent for the parent by blood, this con- clusion must be given its logical results: In re Jobson's Estate, 164 Cal. 312, 128 Pac. 938-940. As the right of inheritance is purely a matter of statutory regulation, so is the subject of the adoption of children and the rights and obligations springing therefrom: In re Job- son's Estate, 164 Cal. 312, 128 Pac. 938. (See page 20.) ADOPTION. 2197 REFERENCES. Right of adopted child to inherit property from a relative of the adoptive parent, see note 33 L. R. A. (N. S.) 139. Power to give child under, existing adoption right to inherit from parent or parent's relatives, see note 35 L. R. A. (N. S.) 216. Descent and distribution of property of adopted child, see note 43 L. R. A. (N. S.) 1056. Right of child adopted in other state to take under local statute of descent and distribution, see note 21 L. R. A. (N. S.) 679, 25 L. R. A. (N. S.) 1285. 16. Specific performance. (See page 21.) REFERENCES. Enforceability of contract to give child share of estate in con- sideration of the surrender of the child to promisor, as affected by noncompliance with the statute prescribing mode of adoption, see note 46 L. R. A. (N. S.) 1134. 17. Hawaii. (See page 21.) 2198 PROBATE LAW AND PKACTICB. CHAPTER 11. SUCCESSION. LAW OF SUCCESSION, 1. Taking by descent. (1) In general. (2) Title passes, how. (3) Deflection of descent. 2. What property descends. (1) In general. (2) Community property. (3) Homesteads. (4) Timber culture claims. 3. Rights of widow. (1) In general. (2) As a survivor. (3) Under agreement. (4) Election to take under will. (5) Construction of statutes. 4. Children's right of inheritance. (1) In general. (2) Heirs of half blood. 5. Descent on death of unmarried minor. 6. Inheritance of adopted children. 7. Descent to father. 8. Descent to grandparents. 9. Who can not inherit. 10. Inheritance by convict. 11. Inheritance by aliens. 12. Inheritance by Indians. 13. Taking by contract and not by succession. 14. Inheritance by or through illegitimate children. (1) Right of — Acknowledgment. (2) Succession to estate of illegitimate not acknowledged or adopted. (3) Sufficiency of acknowledgment — Evidence of recognition. (4) Presumption as to legitimacy. (5) Illegitimacy, how inferred. (6) Construction of Utah statute. (7) Right of nonresident alien. (8) Pretermitted, illegitimate child. 15. What law governs. 16. Procedure and evidence. SUCCESSION. 2199 1. TAKING BY DESCENT. (1) In general. Inasmucli as in the state of California all property real and personal descends to the heir subject only to the right of the personal representative to administer thereon, the rules of the common law system distinguishing between real and personal property in the matter of descent to the heirs do not apply in that state: Richards v. Blais- dell, 12 Cal. App. 101, 106 Pac. 732. The words "next of kin" mean those who inherit under the statute of descents and distributions: Bollinger v. Beacham, 81 Kan. 752, 106 Pac. 1094. The right to inherit is dependent upon the will of the legislature, subject to constitutional restrictions: In re Col- bert's Estate, 44 Mont. 259, 119 Pac. 793. Property vests in the heirs of the decedent dying intestate immediately upon the death of such decedent: Winters v. Winters, 34 Nev. 324, 123 Pac. 17. An heir can be disinherited only by express devise or necessary implication: Love v. Walker, 59 Or. 95, 115 Pac. 296. Where a wife wrongfully abandoned by her husband dies without owning real property, the legal title to which the husband placed in her, the husband succeeds to a third of the property : Somers v. Somers, 27 S. Dak. 500, 131 N. W. 1091. A release by an heir in the lifetime of the ancestor of his interest in the estate of the ancestor is inoperative under the South Dakota Civil Code, sections 215, 918, declaring that a mere expectancy of an heir apparent not coupled with an interest can not be transferred: In re Thompson's Estate, 26 S. Dak. 546, 128 N. W. 1127. Though the legal title to property may vest in the heirs immediately upon the death of the ancestor, it rests subject to administration and is not absolute until after the process of administration: Bickford v. Stewart, 55 Wash. 286, 104 Pac. 263. 2200 PROBATE LAW AND PRACTICE. The rule in Shelley's ease is not law in the territory of Hawaii: Estate of Holt, 19 Haw. 78; Rooke v. Queen's Hospital, 12 Haw. 375, 389. The right to inherit, resting as it does upon public policy, is dependent entirely upon the will of the legislature, except so far as its power is restricted by constitutional provisions. Therefore, no one has the natural right to be the future heir of a living person: In re Colbert's Estate, 44 Mont. 259, 119 Pac. 793. It is the general rule that the right of the heir to take rests at once upon the death of the intestate and has been expressly recognized by the legislature of Montana, but the property of whatever kind it may be goes into the control of the district court and the possession of the administrator for the purposes of administration: In re Colbert's Estate, 44 Mont. 259, 119 Pac. 793. At the death of an intestate his real property descends at once to his heirs subject only to the payment of his debts, and the statute of limitations commences to run against them as from the death of the ancestor : Parker v. Belts, 47 Colo. 428, 107 Pac. 818. Under B. & C. Comp., Sees. 1147, 1221, title to realty passes directly to the heirs as tenants in common subject to the administrator's possession to pay debts, but personalty goes to the administrator by operation of law: DeBon v. Wallen- berg, 52 Or. 404, 97 Pac. 717. The right of inheritance in the state of California is a matter entirely in the control of the legislature and depends wholly upon the provisions of the statutes, regardless of the court's notions of natural right and justice : Estate of Kirby, 162 Cal. 91, 121 Pac. 375. The right to inherit is subject to legislative control: Han- non V. Southern Pac. R. Co., 12 Cal. App. 350, 107 Pac. 335. (See page 38.) (2) Title passes, how. Descent or hereditary succession is the title whereby one acquires his ancestor's estate by SUCCESSION. 2201 right of representation as his heir : Hannon v. Southern Pac. R. Co., 12 Cal. App. 350, 107 Pac. 335. Title vests in heir or devisee from moment of death : Eau- let V. Northvrestern Nat. Ins. Co., 157 Cal. 213, 107 Pae. 292. There is no difference, under laws, between realty and per- sonalty : Raulet V. Northwestern Nat. Ins. Co., 157 Cal. 213, 107 Pac. 292. Rule that title vests in heir or devisee from moment of death held applicable to personalty as well as to realty: Raulet V. Northwestern Nat. Ins. Co., 157 Cal. 213, 107 Pac. 292. Heirs take incorporeal hereditaments subject to all condi- tions affixed thereto : Payne v. Neuval, 155 Cal. 46, 99 Pac. 476. The heirs at law of a deceased stockholder are liable in a suit upon a judgment rendered against the company after the stockholder's death to the extent of the property inher- ited by them : Douglass v. Loftus, 85 Kan. 720, 119 Pac. 74. (See page 40.) (3) Deflection of descent. Under section 1386, subdi- vision 5, and section 1393 of the California Civil Code a cousin once removed of a deceased person does not stand in the same degree of kinship as the nephews and nieces of the deceased and is not entitled with them to succeed to the estate : Estate of Moore, 162 Cal. 324. Cousins inherit only through the parents of each and children can not inherit immediately from a cousin of their parent: Cramer v. Mc- Cann, 83 Kan. 719, 112 Pac. 832. Cousins do not inherit immediately from each other, but only immediately through the parents of each, and children can not inherit immediately from a cousin of their parents: Cramer v. McCann, 83 Kan. 719, 112 Pac. 832. Under subdivision 8 of section 1386 of the Civil Code, pro- viding that property of a deceased widow who leaves no issue, which was the common property of herself and her deceased husband, shall go one-half to his kin, his surviving 2202 PROBATE LAW AND PRACTICE. sister and nieces and nephews take such half, although he devised all the community property to his wife: Estate of Davidson (Cal. App.), 131 Pac. 67. Subdivision 8 of section 1386 of the Civil Code controls the succession to property left by a widow, which was the common property of herself and husband, although he de- vised all or a part thereof to her : Estate of Davidson (Cal. App.), 131 Pac. 67. (See page 40.) 2. WHAT PROPERTY DESCENDS. (See page 40.) 3. EIGHTS OP WIDOW. (1) In general. (See page 44.) (2) As a survivor. Proceeds of an insurance policy on life of decedent are separate property in which the widow has a right of dower: Durdett v. Burdett, 26 Okla. 416, 109 Pac. 922. (See page 45.) (3) Under agreement. (See page 45.) (4) Election to take under will. Where a widow fails to elect whether she will accept under the will or under the law she is held to have elected to take under the statiite of descents and distributions: Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074. Where a widow renounced a will and elected to take under the statute, leaving the estate in such a condition that the remaining provisions of the will could not be enforced con- sistently with the testator's intention, they were disregarded and the whole estate distributed according to the statute: Pennell v. Fennell, 80 Kan. 730, 106 Pac. 1038. Where the language of the will manifests no intention on the part of the testator to dispose of his wife's community interest and makes a testamentary disposition for her in lieu of such interest no election by the widow is necessary: La Tourette v. La Tourette, Ariz. , 137 Pac. 430. Separate and community property were devised to wife, but the testator did not declare same to be in lieu of her SUCCESSION. 2203 community right. Held that the fact that the wi.^e also claims the right to succeed to one-half of certain other com- munity property devised to others than herself does not preclude her from taking the property devised to her: Es- tate of Prager, 166 Cal. 450, 137 Pac. 37. Where a widow, without regard to the provisions of the will of her deceased husband, elects to take under the law of descents and distributions, such election does not render the will inoperative. As between other persons, the will will be enforced as near in accordance with the intention of the testator as it can be : Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235. Where a widow renounces the will of her husband and elects to take under the law and her portion as provided by the statute of descents and distributions is set aside to her, if the estate^iSThMriosuch a condition that the remain- ing provision/^of the will eaii>^t be enforced consistently with the intent of the testator, they will be disregarded and the remainder of the estate will be distributed under the statute of descents and distributions the same as if no will had been made: Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038. Where a wife has given her consent to her husband's making a will, it is not necessary that she should be called upon after his death to make an election under the statute, although she is not named as a beneficiary under the will : Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444. A widow provided for by her husband's will has the choice of two rights, one under the statutes of descents and distri- butions and one under the will; but she can not have both, except in cases where such is the purpose of the will. She may take either, but the election of one is a relinquishment of the other : Ashelf ord v. Chapman, 81 Kan. 312, 105 Pac. 534. The widow's election is between will and no will. If she takes under the statute, there is no will as to her, and none of her rights can be abridged as to any of its provisions. lier Probate Sup. 2. 2204 PEOBATE LAW AND PRACTICE. share is carved out of the estate according to law, precisely as if no will had been made. Then the will operates upon the residue: Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534. (See page 46.) (5) Construction of statutes. A tract of land patented to two married men in the state of "Washington, after the enactment of the community property law of that state, is the common property of the parties and their wives and is not held under a joint tenancy vdth the right of survivor- ship, and upon the death of one of the patentees his interest descends to his widow and children under the laws of descent, and not to the surviving owner: Stone v. Marshall, 52 Wash. 375, 100 Pac. 858. Where an interlocutory decree of divorce has been awarded a wife, but she dies before such decree is made final, the right of the husband to inherit is not affected : In re Seller's Estate, 164 Cal. 181, 128 Pac. 334. Although it is provided by section 132, Civil Code, that the death of either party to a divorce action, after the entry of the interlocutory judgment, does not impair the power of the court to enter final judgment, the purpose of this pro- vision is not entirely clear. The entry of such final judg- ment will not be allowed to operate retroactively so as to take away rights of inheritance which had, by the death, become vested in the surviving spouse : In re Seller's Estate, 164 Cal. 181, 128 Pac. 334. The statute of succession in the state of California in pro- viding for the disposition of the separate property of one dying intestate makes no distinction based upon the channel through which the property may have come to the decedent. "Succession to estates is purely a matter of statutory regu- lations which can not be changed by the court": In re Jobson's Estate, 164 Cal. 312, 128 Pac. 938. (See page 46.) 4. CHILDREN'S RIGHT OF INHERITANCE. (1) In general. Where decedent who had been twice married died leaving a widow and child by the first mar- SUCCESSION. '2205 riage and his property had been acquired by the joint in- dustry of himself and the second wife, the child by the first marriage constituted issue within Comp. Laws. 1909, section 8985, relating to distribution of assets of estates: Schafer V. Ballon, 35 Okla. 169, 128 Pac. 498. (See page 46.) A testator who dies leaving children and by his will leaves all his property to his wife "to have and to hold the same during her natural life or to sell and convey the said property for the benefit of herself and her heirs," dies in- testate so far as his children are concerned; the word "heirs" used in the will not being the equivalent of "chil- dren" under section 5554, B. & C. Comp.: Neal v. Davis, 53 Or. 423. Upon the death of a wife ctne-half of the community property (a homestead) descends to the children who become tenants in common: Eckert v. Schmitt, 60 Wash. 23, 110 Pac. 635 ; Kreig v. Lewis, 56 Ida. 196, 105 Pae. 483. An heir can be disinherited only by express devise or necessary implication: Love v. Walker, 59 Or. 95, 115 Pac. 302. A child of the former marriage would be entitled to her proper share according to the laws of succession, as to the estate of which her father died seised: Zanone v. Sprague, 16 Cal. App. 333, 116 Pac. 989. (2) Heirs of half blood. (See page 47.) REFERENCES. Descent and distribution among kindred of the half blood, see note 26 L. R. A. (N. S.) 603. 10. INHERITANCE BY CONVICT. A person who has been convicted of the crime of man- slaughter in killing the decedent is not deprived of his right of succession by reason of the provisions of section 1409 of the Civil Code providing that "no person who has been con- victed of the murder of the decedent shall be entitled to suc- ceed to any portion of his estate": Estate of Kirby, 162 Cal. 22(16 PROBATE LAW AND PEACTICE. 91, 121 Pae. 370. In the state of Kansas where a murderer is imprisoned under a life sentence his estate is administered in all respects as though he were naturally dead: Dobbs v. Lilley, 86 Kan. 513, 121 Pac. 505. The word murderer as used in such section has the tech- nical meaning given it in the definition embodied in section 187 of the Penal Code. (See page 51.) REFERENCES. Homicide as affecting devolution of property, see note 39 L. R. A. (N. S.) 1088. 11. INHERITANCE BY ALIENS. Inasmuch as the right to inherit is dependent on the will of the legislature subject to constitutional restrictions, it is only by grace of the state in which the lands may be that they can be inherited by an alien or foreigner, and when a legislature confers such privileges it may qualify them with any conditions or burdens it chooses even after the right has vested, provided it does not deny due process of law: In re Colbert's Estate, 44 Mont. 259, 119 Pae. 793. A nonresident alien can not take by succession under section 5715, Revised Codes of Idaho, unless he appear and claim such succession within five years from the death of the decedent; but resident aliens take equally with citizens in all cases by succession: Connolly v. Probate Court, 25 Ida. 35, 136 Pac. 210. Under the provisions of the alien land act of Kansas (chapter 3 of the Laws of 1891), resident citizens of the United States could not inherit lands in that state through the operation of the statute of descents and distributions, when they must trace their descent through a cousin of their parents who was an alien at the time of his death: Cramer v. McCann, 83 Kan. 719, 112 Pac. 832. (See page 52.) 12. INHERITANCE BY INDIANS. An allotment of a duly enrolled Creek Indian who died after receiving her patent, not being a "new acquisition," SUCCESSION. 2207 passed to her parents, who took title to the exclusion of her brothers and sisters: Pigeon v. Buck, 38 Okla. 101, 131 Pac. 1083. Where a Creek freedman whose father was a Seminole was enrolled and an allotment selected to which patent was issued, held that under the supplemental Creek agreement, sections 7, 8, the allotment passed to the heirs of the allot- tee's mother and that the devolution of the estate was gov- erned by Mansf. Dig. Ark., Ch. 40: Iowa Land and Trust Co. V. Dawson, 37 Okla. 593, 134 Pac. 39. A husband not a member of the Creek nation may inherit land as his wife's heir under the Creek law of descent and distribution: "Woodward v. De Grai¥enreid, 36 Okla. 81, 131 Pac. 162. Chapter 49 of the law of Arkansas (Mansf. Dig.) entitled "Descent and Distribution" controls the descent of land allotted to a member of the Seminole tribe of Indians not of Indian blood, who died after receiving his allotment : Heliker-Jarvis Seminole Co. v. Lincoln, 33 Okla. 425, 126 Pac. 723. Under original Creek treaty the land of a Creek woman who died leaving a husband, a white man, and a daughter, descended as if the woman had died after the treaty was ratified : Merley v. Fewel, 32 Okla. 452, 122 Pac. 700. The laws of descent and distribution of the Creek nation having been made to apply, as to the distributive share of certain allotted lands and funds of said tribe by section 28 of the act of Congress of March 1, 1901, the courts of the state of Oklahoma take judicial knowledge of such laws and customs of the Creek nation : Scott v. Jacobs, 31 Okla. 109. The rights of daughters of Creek blood of a deceased Creek allottee under Act of Congress, June 30, 1902, section 6, are determined in the case of Hughes Land Co. v. Bailey, 30 Okla. 194, 120 Pac. 290. The course of descent of an allotment taken by a Creek Indian who died March 1, 1900, is determined under "origi- 2208 PROBATE LAW AND PEACTICB. nal agreement" of May 27, 1901: Divine v. Harmon, 30 Okla. 820, 121 Pac. 219. A citizen of the Creek nation in possession of lands in said nation who files thereon before the Commission to the Five Civilized Tribes under an Act of Congress approved June 28, 1898, and dies April 28, 1900, without receiving his certificate of allotment therefor, is seized of no estate of inheritance and courtesy therein does not attach : Sanders v. Sanders, 28 Okla. 59, 117 Pac. 338. Lands of certain Indian allottees under section 28 of the original agreement of the Creeks ratified by Act of Congress March 1, 1901, which were allotted prior to the supplemental agreement ratified by Act of Congress June 30, 1902 (32 U. S. Stats, at Large, p. 500) descend under the Creek law of descents and distribution: Hooks v. Kennard, 28 Okla. 457, 114 Pac. 744; Lamb v. Baker, 27 Okla. 739, 117 Pac. 189. The land allotted to a dead minor Creek freedman, who was living on April 1, 1899, and who died without issue, de- scends to his mother as his nearest relative : Irving v. Dia- mond, 23 Okla. 325, 100 Pac. 557. Where lands were granted to an Indian by a patent sub- ject to forfeiture if the lands were abandoned and restricting the right of alienation for a certain period and until removed by legislative act and subsequently exercise of the power of alienation was provided for, the determination of the ques- tion of heirship of a deceased allottee by the interior depart- ment is final and res adjudicata: Little Bill v. Swanson, 64 Wash. 650, 117 Pac. 481. An infant Creek freedman who died unmarried, without issue, and intestate had an allotment selected for her. Her father was a Seminole and a non-member of the Creek na- tion. Held that by virtue of the provisions of sections 7 and 8 of the supplemental Creek Treaty (Act June 30, 1902, Ch. 1322, 32 Stats. 500) her allotment passed to the heirs of her mother to the exclusion of her father: Iowa Land and Trust Co: V. Dawson, 37 Okla. 593, 134 Pac. 39. SUCCESSION. 2209 The census card issued by the Dawes commission showed L. T., a member of the Five Civilized Tribes, to be the father of S. T., a deceased allottee. Held that evidence tending to establish that S. T. was an illegitimate child, introduced for the purpose of changing the descent from the putative father to the mother was competent : Mullen v. Short, 38 Okla. 333, 133 Pac. 230. A duly enrolled Creek freedman, a minor, died July 2, 1899, without a surviving widow or children, his allotment not then having been selected. On August 15, 1902, his dis- tributive share of land as a member of said tribe was allotted to his heirs. On April 8, 1905, his father and mother, who were his surviving heirs, executed a v/arranty deed covering said allotment. The grantee sold and gave possession of the land. The father and mother then brought suit for eject- ment and possession. Held that the land passed to them free from restrictions; that same was alienable M^hen they sold it and that they could not maintain their action : Reutie v. McCoy, 35 Okla. 77, 128 Pac. 244. Under the laws existing in the Indian Territory at the time of the creation of the state (Mansf. Dig., Sec. 2522 [Ind. T. Ann. Stats. 1899, Sec. 1820] ), the personal estate not disposed of nor otherwise limited by marriage settlement, when a person dies intestate, descends to be distributed in parcenary to his or her kindred, male and female, subject to the payment of his or her debts, etc., and where there are no debts and neither letters of administration applied for nor granted, the heirs may maintain an action to recover such personalty : First Nat. Bank of Muskogee v. Teirs, 29 Okla. 714, 119 Pac. 218. "Where lands were allotted to Creek Indians prior to the supplemental agreement made with the Creek nation, ratified in 1902 by Act of Congress approved June 30, 1902, after the death of such Indians, the Creek law of descents and distri- butions determines the heirs and their shares: Hooks v. Kennard, 28 Okla. 457, 114 Pac. 744. Section 2 of the Act of Congress approved June 2, 1900,- entitled, "An act to ratify an agreement between the Com- 2210 PHOBATE LAW AND PRACTICE. mission to the Five Civilized Tribes and the Seminole Tribe of Indians" (Act June 2, 1900, Ch. 610, 31 Stats. 250), controls the descent of land to which a duly enrolled member of the Seminole tribe of Indians who died after the 31st of Decem- ber, 1899, before receiving his allotment, is entitled ; but said section has no application to and does not control the descent of land allotted to a member of said tribe of Indians who died after said date but who received his allotment prior to his death : Bruner v. Sanders, 26 Okla. 673, 110 Pae. 730. The descent and distribution of the allotted lands of an enrolled Creek Indian who died before the ratification of the original Creek Treaty (Act March 1, 1901, Ch. 676, 31 Stats. 861) and who had during her lifetime allotted to her under section 11 of the Curtis Act (Act June 28, 1898, Ch. 517, 30 Stats. 495) the use and occupancy of the surface of the allot- ment which was thereafter by section 6 of the original Creek Treaty ratified and deed issued to her heirs therefor, is, by reason of section 28 of the original Creek Treaty, regulated and controlled by the law of descent and distribution of the Creek nation: Barnett v. Way, 29 Okla. 780, 119 Pac. 418. Under the laws of the Creek nation in force in February, 1902, an intermarried non-citizen husband of a citizen of the Creek nation, who on said date died intestate, leaving broth- ers and sisters, but no father, mother, or children, is entitled to an undivided one-half of the allotted lands of his deceased wife, and to possession until such lands are distributed ac- cording to law under Act March 1, 1901, Ch. 676, See. 6, 31 Stats. 863, and Comp. Laws Creek Nation 1900, Ch. 10, Sec. 8 : Bodle V. Shoenf elt, 22 Okla. 94, 97 Pac. 556. The non-citizen widow of an allottee of land of the Creek nation whose husband in June, 1906, is entitled to dower in his estate and until it is assigned to her is entitled to remain and possess the home or house of her late husband, together with the farm thereunto attached, free from all rent : Haw- kins V. Stevens, 21 Okla. 849, 97 Pac. 567. "Where non-citizen Creek allottee executes a will of her homestead, naming therein her husband as sole devisee, and dies leaving her surviving an only child by a former husband, SUCCKSSION. 2211 bom prior to the 25th day of May, 1901, such child is the sole heir of such allottee and is entitled to the whole of her estate as if she had died intestate, under the provisions of Sec. 6500, Mansf. Dig. (Ind. T. Ann. Stats. 1899, Sec. 3572) relat- ing to pretermitted children : In re Brown 's Estate, 22 Okla. 216, 97 Pac. 613. (See page 53.) 14. INHERITANCE BY OR THROUGH ILLEGITIMATE CHILDREN. (1) Right of — Acknowledgment. At common law a bas- tard could not be the heir of any one, nor could he have heirs except of his own body, but this rule does not now subsist in Oregon: State v. McDonald, 59 Or. 520, 117 Pac. 283. (See page 55.) REFERENCES. Rights of lineal descendants of illegitimate to inherit through him, see note 27 L. R. A. (N. S.) 220. (2) Succession to estate of illegitimate not acknowledged or adopted. (See page 55.) (3) SufiSciency of acknowledgment — Evidence of recog- nition. Under the laws of the state of Kansas illegitimate children inherit from the mother, and the mother from the children. But the children also inherit from the father whenever they have been recognized by him as his children ; but such recognition must have been general and notorious or else in writing. Held in this case that the evidence of such recognition was sufficient to establish the parentage in question : McLean v. McLean, — Kan. — 140, 140 Pac. 849. (See page 55.) (4) Presumption as to legitimacy. (See page 56.) (5) Illegitimacy. How inferred. (See page 57.) (6) Construction of Utah statute. (See page 57.) (7) Right of nonresident alien. (See page 57.) (8) Pretermitted illegitimate child. (See page 58.) 2212 PROBATE LAW AND PRACTICE. 15. "WHAT LAW GOVERNS. As a rule the disposition is governed by the lex domicilii deeedentes and the descent of real property by the lex rei sitae : State v. McDonald, 59 Or. 520, 117 Pac. 281 ; Hohn v. Bidwell, 27 S. Dak. 249. (See page 58.) 16. PROCEDURE AND EVIDENCE. In a proceeding between the heirs of a deceased husband and those of his deceased wife to deter- mine heirship to his estate, a finding that a certain tract of land was the separate property of the husband and not the property of the community is a finding of fact and not a conclusion of law : Estate of Hill, 47 Cal. Dec. 131, 138 Pac. 690. Statements by members of decedent's family concerning family history and relationship, made after the controversy as to the right of the estate of decedent had arisen and in reply to questions propounded to elicit evidence are inad- missible ; such declarations being admissible, to prove pedi- gree or relationship, only when made naturally and sponta- neously before any controversy has arisen: In re Walden's Estate, 166 Cal. 446, 137 Pac. 35. It is not required that a petition for the determination of heirship under the Colorado statute (Rev. Stats., Sec. 7050) shall be answered or met by plea. The decree is simply a de- termination of who are the heirs of the deceased : Wilson v. Wilson, 55 Colo. 70. Under section 5119, Rev. Codes 1905 (North Dakota) it is held that parol testimony is admissible to establish the fact that the omission of a child from the will was intentional: Schultz V. Sehultz, 19 N. Dak. 688. Under Mansf. Dig., Sec. 2522 (Ind. T. Stats. 1899, Sec. 1820) heirs are entitled to maintain action to recover per- sonalty of an intestate: First Nat. Bank v. Tevis, 29 Okla. 714, 119 Pac. 218. SUCCESSION. 2213 One claiming as heir must make proof of his relationship to the intestate by sufficient evidence, but a preponderance is sufficient: In re Clark's Estate (Cal. App.), 110 Pac. 828. Evidence of admissions and declarations of deceased and of other relatives held sufficient proof: In re Clark's Estate (Cal. App.), 110 Pac. 828. Evidence sufficient to show that B was decedent's niece and that two persons were brothers: In re Hartman's Es- tate, 157 Cal. 206, 107 Pac. 105. During the lifetime of their father, an agreement was entered into between children that they should ignore his will in the event that he made one, and then share his estate equally as if he had died intestate, but under this agreement a final distribution of the parent's estate was a condition precedent to an action on the contract ; where the executor refused to apply for distribution when the estate was in a condition to be finally closed, it was held that this consti- tuted a breach of contract, giving a right of action to the other children under their agreement, as the terms of the agreement necessarily implied that a general distribution of the estate should be made within a reasonable time, and the executor would not be allowed to interfere with the rights of the other parties to the contract by a refusal to apply for a final distribution of the estate: Spanzenberg v. Spanzenberg, 19 Cal. App. 439, 126 Pac. 379. In a proceeding to determine succession the decision of the trial court upon the conflicting evidence is conclusive and that even if it be conceded that the appellate court may weigh the evidence where all the testimony is given by depo- sition, the testimony was not of such a character as to justify a reversal of the decision upon the ground of abuse of dis- cretion: Estate of Walden, 166 Cal. 446, 137 Pac. 35. 2214 PROBATE LAW AND PKACTICB. CHAPTER III. ESCHEAT AND PROCEEDINGS RELATIVE THERETO. 1. General doctrine. 2. Jurisdiction probate courts. 3. Property of outlawed corporations. 4. Land of Mormon Churcli. 5. Aliens. 6. Premature action. 7. Nonresident aliens. 8. Pleading and practice. 9. Judgments. 10. Limitation of actions. 11. Recovery of escheated property and proceedings thereunder. 1. General doctrine. The right of the state to escheat and hold the property of absentee depositors in a bank is as ample and rests upon as sound reasons of public policy as its right to escheat the property of persons who have died leav- ing no known heirs: State v. First Nat. Bank, 61 Or. 551, 123 Pac. 714. The statute of Oregon providing for the escheat to the state of deposits in national banks unclaimed for seven years is not unconstitutional as being in violation of the United States laws against "visitorial" legislation by the states: State V. First Nat. Bank, 61 Or. 551, 123 Pac. 714. 2. Jurisdiction of probate courts. The jurisdiction of the county courts in probate in the state of Oregon is derived from the constitution and the legislature has no power to deprive them thereof, and any attempt to do so is unconsti- tutional and void and the determination of heirship as to personalty is part of the primary and fundamental jurisdic- tion of those courts: State v. McDonald, 55 Or. 419, 104 Pac. 972. The circuit court in Oregon has jurisdiction to adjudicate upon the devolution of the title to realty, which the action ESCHEAT AND PROCEEDINGS RELATIVE THERETO. 2215 of the county court can not effect: State v. McDonald, 55 Or. 419, 104 Pac. 972. (See page 68.) 3. Property of outlawed corporations. (See page 70.) 4. Land of Mormon Church. (See page 70.) 5. Aliens. (See page 70.) 6. Premature action. (See page 71.) 7. Nonresident aliens. (See page 70.) 8. Pleading and practice. The state is an "interested party" in the matter of the distribution of an intestate's estate to the extent that it may appear on the hearing of an application for an order of distribution to claim that the decedent left no heirs, before the right of the state has been determined in an escheat action : In re Estate of John Mc- Clellan, 31 S. Dak. 653. See, also. In re McClellan's Estate, 27 S. Dak. 109. Under the provisions of Sec. 5716, Rev. Codes of Idaho, the personal property of the deceased, when succession is not claimed as provided by that section, may be reduced to the possession of the state to be disposed of as provided by such section: Connolly v. Probate Court, — Idaho — , 136 Pac. 210. Where in escheat proceedings the claimants or defendants proceed to a joint trial vpithout objection they are not in a position to claim a separate trial on appeal: State v. Mc- Donald, 55 Or. 419, 104 Pac. 971. A proceeding to escheat the property of a deceased person for -want of heirs, under the statute of Oregon, is a proceed- ing at law and not in equity: State v. McDonald, 55 Or. 419, 104 Pac. 973. (See page 72.) 9. Judgments. (See page 73.) 10. Limitation of actions. (See page 73.) 11. Recovery of escheated property. (See page 74.) PART II. GUAEDIAN AND WARD. CHAPTER I. GUARDIANSHIP OF MINORS. MINORS AND THEIR CUSTODY, GUARDIANS, COMMITMENT, AND HABEAS CORPUS. 1. Kinds of guardians. 2. Guardian ad litem. (1) Who is, virtually. (2) Application of statutes. (3) Appointment and duty of court. (4) No presumption as to appointment. (5) Validity of appointment. (6) Appearance for ward. Waiver of notice. (7) Appeal. Affirmance of judgment. 3. Testamentary guardian. (1) Guardian appointed by deed is. (2) Mother's incapacity to appoint. (3) Mother's consent to father's appointment. (4) Powers of. Validity of acts. 4. Commitment of infants. 5. Habeas corpus for custody of children. (i) Nature of proceeding. (2) Jurisdiction of courts. Temporary order. (3) What matters, only, will be considered. (4) Welfare of infant controls. (5) Awarding child to proper custody. (6) Attacking adoption proceedings. (7) Attacking guardianship proceedings. (8) Discharge and dismissal of writ. (9) Former adjudication as res judicata, (10) Writ of prohibition. (11) Appeal. 6. Marriage of minor. 7. Contempt of court. (2217) 2218 PROBATE LAW AND PRACTICE. 1. KINDS OF GUARDIANS. (See page 85.) 2. GUARDIAN AD LITESI. (1) Who is virtually. Judgment obtained by one assum- ing to act as guardian ad litem is not void, and no proof of appointment is essential: Skinner v. I£nickrehm, 10 Cal. App. 596, 102 Pac. 947. (See page 85.) REFERENCES. As to the position and powers of a guardian generally, see note to Credle v. Bangham, 133 Am. St. 802-5. (2) Application of statutes. At common law an infant plaintiff sued by guardian ad litem but under the laws of Montana he sues either by his general guardian or a guard- ian ad litem: Melzner v. N. T. Ry. Co., 46 Mont. 162, 127 Pac. 148. Sections 2907, 2908, Comp. Laws of Utah 1907, contem- plate and provide for the appointment of a guardian ad litem for resident and non-resident minor plaintiffs as well as resident and non-resident minor defendants: Schuyler v. So. Pac. Co., 37 Utah 581, 109 Pac. 461. Under Sees. 4229, 4937, Wilson's Rev. & Ann. Stats. 1903 of Oklahoma, a minor may institute and prosecute a suit in a justice court by some adult as his next friend or by guardian ad litem appointed by the justice before whom the action is brought: Hill v. Reed, 23 Okla. 616, 103 Pac. 855. (See page 86.) (3) Appointment and duty of court. Under sections 1983, 1985-1987 Comp. Laws 1897 N. Mex., it is the duty of the district court on appeal from a judgment of the probate court dismissing a petition to revoke the probate of a will, to appoint a guardian ad litem for an infant petitioner whose infancy is first disclosed at the trial; and a motion to dismiss the proceedings should not be sustained, notwith- standing the infant refused to apply for such appointment: In re Dye's Will, 16 N. Mex. 297, 120 Pac. 306. GUARDIANSHIP OF MINORS. 2219 Where it develops at the trial that a plaintiff is a minor and his counsel moves for the appointment of a guardian it is error for the court to dismiss the case on defendant's motion. The appointment of a guardian ad litem is a mat- ter within the discretion of the court and on motion it be- came its duty to appoint a guardian ad litem or allow the case to proceed as it had begun. Judgments rendered for or against minors are not void but voidable: Kingsbach V. Casey, 66 Wash. 643, 120 Pac. 108. The discretion of the court to be exercised in respect of permitting or refusing to permit an action to proceed, by appointing or refusing to appoint a guardian, does not ex- tend to a refusal to make the appointment and to assume jurisdiction of the action when a prima facie right to prose- cute it is made to appear. It is the duty of the court to guard carefully the rights of those who can not act upon their own judgment: State v. District Court, 38 Mont. 166, 99 Pac. 295. Under Code Civ. Proc, Sec. 372, court may appoint "in any case, when it is deemed by court in which action or proceed- ing is prosecuted, or by judge thereof, expedient to repre- sent infant": In re Snowball's Estate, 156 Cal. 235, 104 Pac. 466. (See page 86.) (4) No presumption as to appointment. (See page 87.) (5) Validity of appointment. The power of a valid au- thorization to briQg suit for specific injuries is not exhausted by a nonsuit as to the original defendant and the substitu- tion of a new one : Skinner v. Knickrehm, 10 Cal. App. 596, 102 Pac. 947. In an action by a guardian ad litem, it is not necessary to show that he has filed a bond, taken an oath, or received letters of guardianship; it is sufficient to show that he has filed a petition for appointment, and that the court made an order appointing him : Foley v. Northern California P. Co., 165 Cal. 103, 130 Pac. 1183. (See page 87.) Probate Sup. 3. 2220 PROBATE LAW AND PEACTICB. (6) Appearance for ward. Waiver of notice. (See page 87.) (7) Appeal. Affirmance of judgment. (See page 88.) 3. TESTAMENTARY GUARDIAN. (1) Guardian appointed by deed is. The right to ap- point a guardian of a minor by will or deed is statutory, and under section 241 of the Civil Code, a guardian of a legiti- mate child may be so appointed "by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent": Matter of Allen, 162 Cal. 625, 124 Pac. 237. (See page 88.) (2) Mother's incapacity to appoint. Under section 241 of the Civil Code, a mother is authorized to appoint a testa- mentary guardian of a minor child only in the event that the father is dead or incapable of acting. This condition must exist at the date of the mother's death, or at least when her will is probated: Matter of Allen, 162 Cal. 625, 124 Pac. 237. A mother to whom a decree of divorce has awarded the custody of a minor child has no right to appoint a testa- mentary guardian thereof, if the father of the child was alive at the time of her death. Such an attempted appointment is entirely without force or effect, and did not become op- erative upon the subsequent death of the father: Matter of Allen, 162 Cal. 625, 124 Pac. 237. In such a case the primary consideration for the guidance of the court is "the best interest of the child with respect to its temporal and its mental and moral welfare," and the conclusion reached by the court will not be set aside on appeal unless it was reached as the resialt of an abuse of discretion. In reaching its conclusion the court may take into consideration a preference expressed by the minor, even though the child was under the age of fourteen : Matter of Allen, 162 Cal. 625, 124 Pac. 237. (See page 89.) (3) Mother's consent to father's appointment. (Seepage 90.) GUARDIANSHIP OP MINORS. 2221 (4) Powers of. Validity of acts. (See page 90.) 4. COMMITMENT OF INFANTS. Under the statute of Washington (Comp. Stats. 1910, Sec. 3128) providing that "it shall be lawful for and in the discretion of the district court of any county to commit to" the house of refuge or reform or indus- trial school of any state, where provision has been or shall be made, "any child being a legal resident of said county, and being between the ages of ten and sixteen years, who upon complaint and due proof, is found to be a vagrant or so in- corrigible and vicious that a due regard for the morals and welfare of such child manifestly requires that he or she shall be committed to said house of refuge, or reform or industrial school," the jurisdiction is limited to cases where the child is a legal resident of the county in which the court is sitting. It is a summary proceeding not conducted according to the course of the common law and is not within the general jurisdiction of the district court. In such cases the presump- tion as to jurisdiction in support of judgments of superior courts of general jurisdiction does not apply and that the court had jurisdiction must therefore appear by the record : Kelsey v. Carroll, — Wyo. — , 138 Pac. 868. "Where a petition, praying that a minor be taken into custody as a dependent child, fails to state any of the facts required by statute to constitute the child a dependent, an order of the juvenile court committing him to the custody of the probation officer is without jurisdiction and the child will be released on habeas corpus : Ex parte Burner, 23 Cal. App. 637, 138 Pac. 90. (See page 91.) 5. HABEAS CORPUS FOR CUSTODY OF CHILDREN. (1) Nature of proceedings. The legal presumption is that it is for the best interests of the child and of society for the child to remain with its natural parents during the period of its minority and be maintained, cared for, and educated by them under their supervision and direction ; though there is no absolute right in the parents in this regard : Hammel V. Parrish, — Utah — , 134 Pac. 901. (See page 92.) 2222 PROBATE LAW AND PEACTICE: (2) Jurisdiction of courts. Temporary order. Wliere a husband who had separated from his wife obtained posses- sion of their child without her consent and took it into an- other state the trial court, both parties being within its juris- diction, has authority under a writ of habeas corpus to com- pel the return of the child, and its production in court: Breene v. Breene, 51 Colo. 342, 117 Pac. 1002. (See page 92.) (3) What matters only will be considered. (See page 93.) (4) Welfare of infant controls. In determining to whom the custody of a child should be awarded its welfare is to be regarded more than the technical legal right of the parent; but where an application made by a father for the custody of his child after the death of its mother is resisted by a third person on the ground that the father is immoral and imfit to have its custody he will not be deprived of such custody unless the objection is sustained by clear and satis- factory proof: Pinney v. Sulzen, — Kan. — , 137 Pac. 987. In determining the right to the custody of a child as be- tween one parent and a third person who has adopted it with the consent of the other parent, which adoption has been approved by the court in a divorce decree subsequently rendered, the -washes of the parent will be subordinate to the moral, intellectual, and material welfare of the child. It is not sufficient to establish the unfitness of a parent for the custody and control of his minor child, to show that he has some faults of character or bad habits ; it must be shown that his condition in life or his character and habits are such that provision for the child's ordinary comfort and content- ment, or for its intellectual and moral development, can not be reasonably expected at the parent's hands: Jamison v. Gilbert, 38 Okla. 751, 135 Pac. 342. When a parent has surrendered the control of his child when it was a toddling infant to other parties and permitted them to maintain, clothe, feed, and care for it until it is eight or nine years of age and a strong reciprocal mutual affection has grown up between the child and its foster parents, and the parent seeks to recover possession of the GUARDIANSHIP OF MINORS. 2223 child, the natural or presumptive right of the parent can not prevail if the interest and welfare of the child forbid it. The law in such cases regards the welfare and permanent interests of the child as much more important than the natural or presumptive right of the parent: Hammel v, Parrish, — Utah — , 134 Pac. 901. A parent may by contract legally transfer and surrender his infant child into the custody of another where the in- terest of the child is not prejudiced by the transaction, and in all controversies arising respecting the custody of the child after such transfer and surrender have been made, the paramount consideration — ^the question of controlling importance — is the interest, welfare, and happiness of the child : Stanford v. Gray, — Utah — , 129 Pac. 426. In determining the custody of a child, his welfare is the paramount consideration. Even parental love must yield to the claims of another, if, after due judicial investigation, it is found that the highest good of the child requires it: Hickey v. Thayer, 85 Kan. 556, 118 Pac. 56. In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and con- trolling question by which the court must be guided : Wil- son V. Mitchell, 48 Colo. 454, 111 Pac. 25. The paramount right of the parent must, however, in all cases be held subordinate to the welfare of the child : State V. Bell, 58 Wash. '575, 109 Pac. 51. (See page 94.) REFERENCES. Denial of custody of child to parent for its well being, see note 41 L. R. A. (N. S.) 564. (5) Awarding child to proper custody. Courts will not disturb the family relation, nor take a child from its parent merely because a third person, seeking its custody, may have large means and is therefore able to give the child greater comforts, wider education, and the promise of a larger in- heritance: Pinney v. Sulzen, — Kan. — , 137 Pac. 987. 2224 PROBATE LAW AND PRACTICE. The legal right of the mother of a minor child, its father being dead, to its custody and control, is superior to that of a third person whose claim is based upon the fact that he has cared for and supported the child for some two or three years : In re Butler, — Okla — , 137 Pac. 673. The husband, whose wife undertook the care of an infant child for an uncertain compensation, and who cared for and supported it for two or three years, has no legal right to the custody of such child against the claims of its mother, and the mother having obtained its custody, can not be de- prived thereof by writ of habeas corpus: In re Butler, — Okla. — , 137 Pac. 673. A person who is a suitable person for the purpose is en- titled to the custody of a child as a matter of right, as against any one not its parent, irrespective of the question whether it might be better provided for by some one else who is willing to assume the obligation: Ex parte Hollin- ger, — Kan. — , 132 Pac. 1181. The right of a father to the custody and services of his child is subject to the welfare of the child and in further- ance thereof the court may give the child into the custody of the mother in preference to that of the father: Breene y. Breene, 51 Colo. 342, 117 Pac. 1002. The unfitness which will deprive a parent of the right to the custody of his minor child must be positive and not com- parative; and the mere fact that his minor child might be better cared for by a third person is not sufficient to deprive the parent of his right to its custody: Jamison v. Gilbert, 38 Okla. 751, 135 Pac. 342. Upon the death of a parent to whom upon the granting of a divorce, the custody of a child has been awarded, the right to its custody accrues to the other parent, if a suitable person for that purpose: Ex parte HoUinger, — Kan. — , 132 Pac. 1181. ' Where a parent in writing voluntarily relinquishes and surrenders the custody of his infant child to the custody of another, he can not recover the custody of the child in his GUARDIANSHIP OF MINORS. 2225 O'RTi right; and where he comes before the court for that purpose the burden is upon him to show, not on his own behalf, but on behalf of the child, that it is not being properly cared for: Stanford v. Gray, — Utah — , 129 Pac. 428. By natural law, by common law, and likewise by the stat- utes of the state of Colorado, the natural parents are en- titled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circum- stances appear which render such custody inimicable to the best interests of the child : Wilson v. Mitchell, 48 Colo. 454, 111 Pac. 26. On habeas corpus by a mother for custody of a child, re- spondents can not rely on pending proceedings under Rem. & Bal. Code, Sec. 1701, to adjudge custody of the child as one abandoned, where no process has been served in that pro- ceeding, no date for final hearing fixed, and no final order made ; the society to which custody was temporarily awarded in such proceeding acquiring no rights available as a defense to the habeas corpus proceedings: State v. Reynolds, 60 Wash. 12, 110 Pac. 634. The fact that the father required the children to assist in the ordinary work in and about the home, and the fact that the stepmother is strict in disciplining the children, do not offer sufficient reasons for awarding the custody of the boy to the grandmother: State v. Bell, 58 Wash. 575, 109 Pac. 52. Where a child has been brought up by foster parents in an environment that is distinctly different from that to which he would be submitted by restoring him to the care of his mother a revulsion of feeling would be liable to occur which would lead to embarrassment and misery and luider the cir- cumstances of the case the foster parents are entitled to retain the custody of the child: Ex parte Fields, 56 Wash. 259, 105 Pac. 469. 2226 PROBATE LAW AND PRACTICE, After the death of the mother, to whom the custody of the child had been given by a decree of divorce, the father being a suitable person is the proper person to have the custody of the child as against the mother's parents: Ex parte Barnes, 54 Or. 548, 104 Pae. 297. (See page 94.) (6) Attacking adoption proceedings. (See page 96.) (7) Attacking guardianship proceedings. (See page 96.) (8) Discharge and dismissal of writ. (See page 97.) (9) Former adjudication as res judicata. (See page 97.) (10) Writ of prohibition. (See page 98.) (11) Appeal. The supreme court of the state of Okla- homa has jurisdiction on appeal to review an order of the district court awarding the custody of a minor child to one of the parties in a habeas corpus proceeding, brought for the purpose of determining who has the right to the custody and control of such minor: Jamison v. Gilbert, — Okla. — , 135 Pac. 312. (See page 98.) 6. MAERIAGB OF MINOE. A minor on marrying becomes of lawful age so that he can sue in his own name: Ex parte HoUopeter, 52 "Wash. 41, 100 Pac. 162, 132 Am. St. 952. 7. CONTEMPT OF COURT. Appearing in court in response to a writ of habeas corpus and refusing to produce the body of a child pursuant to the requirements of such writ, without a reasonable excuse, or willfully making an evasive or insufficient answer thereto, is a contempt committed in the presence of the court : Smythe V. Smythe, 28 Okla. 266, 114 Pac. 257. GUARDIANSHIP OF MINORS. 2227 CHAPTER II. GUARDIANSHIP OF MINORS (CONTINUED). (See page 99.) § 70. Appointment of guardian by court after hearing. § 104a. Guardian of estate of minor, etc. Notice to relatives, of what. §70. Appointment of guardian by court after hearing. If, after a full examination and hearing upon such petition, it appears to the court that the person in question is inca- pable of taking care of himself and managing his property, such court must appoint a guardian of his person and estate or person or estate, with the powers and duties in this chap- ter specified. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1941), §1764. § 104a. Guardian of estate of minor, etc. Notice to rela- tives, of what. At any time after the issuance of letters of guardianship upon the estate of any minor, insane or incom- petent person, any relative of the ward, or the attorney for such relative, may serve upon the guardian, or upon the attorney for the guardian, and file with the clerk of the court wherein administration of such ward's estate is pend- ing, a written request, stating that he desires special notice of any or all of the following mentioned matters, steps or proceedings in the administration of said estate, to wit : 1. Filing of petitions for sales, leases or mortgages of any property of the ward's estate. 2. Filing of accounts. 3. Filing of application for removal of ward's property to any foreign jurisdiction. 4. Filing of petitions for partition of any property of the ward's estate. 5. Proceedings for removal, suspension or discharge of the guardian, or final determination of the guardianship. 2220 PROBATE LAW AND PRACTICE. [Written request shall contain what. Service.] Such re- quest shall state the post ofRee address of such relative, or his attorney, and thereafter a brief notice of the filing of any of such petitions, applications, or accounts, or proceedings, except petitions for sale of perishable property, or other per- sonal property which will incur expense or loss by keeping, shall be addressed to such relative, or his attorney, at his stated post office address, and [1] deposited in the United States post office with the postage thereon prepaid, within two days after the filing of such petition, account, applica- tion, or the commencement of such proceeding; or [2] per- sonal service of such notices may be made on such relative, or his attorney, within said two days, and such personal service shall be equivalent to such deposit in the post office, and proof of mailing or of personal service must be filed with the clerk before the hearing of any such matter. If, upon the hearing it shall appear to- the satisfaction of the court that the said notice has been regularly given, the court shall so find in its order of judgment, and such judgment shall be final and conclusive upon all persons. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1938), § 1761. CHAPTER III. POWER AND DUTIES OF GUARDIANS. (See page 123.) § 11-3. Inventory of ward's estate. Refusal of guardian to return inventory. § 114. Account of guardian. § 113. Inventory of ward's estate. Refusal of guardian to return inventory. Evety guardian must return to the court a verified inventory of the estate of his ward within three months after his appointment. He must annually thereafter, and at such other times as directed by the court, render a verified account of the estate of his ward. All the estate of the ward described in the first inventory must be appraised by appraisers appointed, sworn, and acting in the manner provided for regulating the settlement of the estates of decedents. Such inventory, with the appraise- ment of the property therein described, must be recorded POWERS Ai^D DUTIES OP GUARDIANS. 2229 by the clerk of the court in a proper book kept in his office for that purpose and whenever any ward is or has been dur- ing the guardianship confined in a state hospital for the insane in this state a copy of said inventory must be served upon the secretary of the state commission in lunacy' or. its attorney. Whenever any other property of the estate of any ward is discovered, not included in the inventory of the estate already returned, and whenever any other property has been succeeded to, or acquired by any ward, or for his benefit, the like proceedings must be had for the return and appraisement thereof and the service of the same as are herein provided in relation to the first inventory and return. If within the time prescribed, or within such further time, not exceeding two months which the court or judge shall for reasonable cause allow, the guardian neglects or refuses to return the inventory or render his account, the court may, vipon notice, revoke the letters of guardianship and the guardian shall be liable on his bond for any injury to the estate, or any person interested therein, arising from such failure. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1943), §1773. §114. Account of guardian. The guardian must upon the expiration of a year from the time of his appointment and as often thereafter as he may be required, present his account to the court for settlement and allowance ; provided, that no account of the guardian of any insane person, who is or has been during such guardianship confined in a state hospital in this state, shall be settled or allowed unless no- tice of the settlement of said account shall have been first given to the secretary of the state commission in lunacy or its attorney at least five days before the hearing. The termi- nation of the relation of guardian and ward by the death of either guardian or ward or by the ward attaining his major- ity or being restored to capacity shall not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the' guardian. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1943), § 1774. 2230 PEOBATE LAW AND PBACTICB, CHAPTER IV. SALE OF PROPERTY AND DISPOSITION OF PROCEEDS. (See page 134.) § 119. May sell in certain cases. § 139a. Proceedings for completion of contracts for sale of real estate by guardian. § 119. May sell in certain cases. "When the income of an estate under guardianship is insufScient to maintain the ward and his family or to maintain and educate the ward when a minor, or to pay for his care, treatment and support, if confined in a state hospital for the insane, his guardian may sell his real or personal estate, or mortgage the real estate for that purpose, upon obtainiag an order therefor; provided, that no such order shall be granted when the ward is or has been, during the guardianship, confined in a state hospital for the insane ia this state unless notice of the pro- ceedings shall have been given to the secretary of the state commission in lunacy or its attorney at least five days before the hearing. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1945), §1777. § 139a. Proceedings for the completion of contracts for sale of real estate by guardians. All proceedings for the com- pletion of contracts for the sale of real estate by guardians must be had and made as required by the provisions of this title concerning the conveyance of real estate by executors and administrators under Sees. 1597 to 1607 inclusive, of this code, and said sections are hereby made applicable to conveyances by guardians as provided by Sec. 1810a. [Repealing clause.] See. 2. All acts and parts of acts in- consistent with this act are hereby repealed. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1945), § 1789a. CHAPTER y. NONRESIDENT GUARDIAN AND WARDS. (See page 151.) GENERAL AND MISCELLANEOUS PBOVISIONS. 2231 CHAPTER VI. GENERAL AND MISCELLANEOUS PROVISIONS. § 160a. Conveyance by guardian. § 160b. Attorneys' fees against minor fixed by court. GUARDIAN AND WARD. 1. Appointment of guardians. (1) Jurisdiction of court. (2) Right to appointment. (3) Necessity of petition and notice. (4) Circumstances for consideration. (5) Bond. Estoppel. (6) Appointment here, notwithstanding foreign guardian. (7) Validity of appointment. 2. Guardianship of Indians. (1) In general. 3. Control of property, support, maintenance, and custody of ward. (1) Control of property. (2) Support and maintenance. (3) Contract for support. (4) Support of abandoned child. (5) Custody of ward. Access. 4. Duties and powers of guardians. (1) In general. (2) Power of guardian as to contracts. (3) Power of guardian to assign appropriation made for ward by probate court. 5. Rights and powers of guardians. (1) Guardian may do what. (2) Guardian can not do what. (3) Actions by guardian. (4) Actions against guardians. 6. Investments by guardians. 7. Sales of land. (1) In general. (2) Petition for. (3) Notice. Publication. (4) Additional bond. (5) Order for. (6) Validity of. (7) Purchaser and his rights. 2232 PROBATE LAW AND PEACTICB, -' (8) Setting aside. (9) Collateral attack. 8. Lease and demise of ward's property. 9. Mortgage of ward's property. (1) Petition as foundation of jurisdiction. (2) Authority to mortgage. (3) Validity of order and mortgage. (4) Revival and foreclosure of former mortgage. 10. Nonresident guardians and wards. 11. Accounting and settlement. (1) In general. (2) Duty to account. (3) Jurisdiction of courts. (4) Exceptions to account. (5) Admissibility Qf evidence. (6) Proper charges against guardian. Interest. (7) Credits allowable to guardian. (8) What is not to be allowed. Compensation. (9) Death of ward before settlement. (10) Conclusiveness. Attacking settlement. (11) Discharge of guardian. 12. Collateral attack. 13. Jurisdiction of courts. 14. Jurisdiction of equity. 15. Liability of guardians. (1) For investments made without order of court. (2) Protection of order of court. (3) Liability of guardian in general. 16. Embezzlement by guardian. 17. .Removal of guardian. 18. Rights and liabilities of ward. (1) In general. (2) Actions by ward. (3) Actions against ward. (4) No disaffirmance Of parol petition when. 19. Bond of guardian, and liability thereon. (1) Failure to give a bond. (2) Purpose of bond. (3) Breach of bond. (4) New bond. (5) Action on bond. (6) Liability of sureties. (7) Defense to action. (8) Limitations of actions. 20. Limitations of actions. GENERAL AND MISCELLANEOUS PROVISIONS. 2233 21. Appeal. (1) In general. (2) Appealable orders. (3) Findings. (4) Effect of, as stay. (5) Record. Presumption. (6) Affirmance. Reversal. (7) Dismissal. 22. Hawaii. 23. Disqualification of judge. § 160a. Conveyance by guardian. When a person who is bound by contract in writing to convey any real estate, or to transfer any personal property, dies before making con- veyance or transfer, and in all cases when such decedent, if living, might be compelled to make such conveyance or transfer, the court, having jurisdiction of the guardianship proceedings of such nlinor, may make a decree authorizing and directing the guardian of any minor, who has succeeded by distribution to the estate of such deceased person, to con- vey or transfer such real estate or personal property to the person entitled thereto. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1947), § 1810a. § 160b. Attorneys ' fees against minor fixed by court. All contracts for attorneys* fees made by or for the benefit of minors shall be void, and whenever a judgment shall be re- covered by or on behalf of a minor, the attorneys' fees chargeable against said minor shall be fixed by the court in which said judgment is rendered, and if said judgment is for money, and there is no general guardian of said minor, one shall be appointed by the court, and the entire amount of the judgment shall be paid to and shall be cared for by such general guardian, under the control of the court. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1947), § 1810b. GUARDIAN AND WARD. 1. APPOINTMENT OP GUAEDIANS. (1) Jurisdiction of court. A probate court has general jurisdiction as to the care of the estates of minors and the 2234 PROBATE LAW AND PRACTICE. matter of appointing a guardian for a minor and authoriz- ing the transfer of property through a guardian being within its jurisdiction, its decision in respect to them is binding and not open to collateral attack : Brock v. Morris, — Kan. — 132 Pac. 1185. In the appointment of guardians, the county (probate) courts are vested with a sound legal discretion and their judgments in such cases will not be overruled unless it is apparent that there has been an abuse of such discretion: Brigmam v. Cheney, 27 Okla. 510, 112 Pac. 993. It is not an abuse of discretion of the probate court to refuse an application to adopt a minor and grant one for guardianship when both applications are made by relatives of the minor and both applicants are equally well qualified to take charge of and care for it : In re Wells, 60 Wash. 518, 111 Pac. 779. The county court in the state of Oklahoma by reason of Sec. 12, Art. 7, Const., has no jiirisdiction in a probate pro- ceeding by a guardian for an order of sale of the ward's real estate to hear and determine a claim of a third person to the real estate adverse to the ward: Jefferson v. Wink- ler, 26 Okla. 653, 110 Pac. 755. The appointment of a curator by order of the probate court in what was Indian Territory for infant minors, pur- suant to Mansf. Dig., Sec. 3477 (Ind. T. Ann. Stats. 1899, Sec. 2373), if made M'ithout voluntary appearance or due notice issued by said court to the mother of such minors, the father being dead, is void and such order may be set aside by said court on petition of the mother: Wortham v. John, 22 Okla. 562, 98 Pac. 347. (See page 164.) (2) Right to appointment. Under Sec. 1751, Cal. Code of Civil Proc, it is the duty of the court to appoint the father or mother of a minor child under the age of 14 years as its guardian, if such parent is found by the court competent for the office; and, inasmuch as the presumption of law is in favor of competency, the section is to be construed as if it read that the father or mother is to be appointed if not GENERAL AND MISCELLANEOUS PROVISIONS. 2235 found by the court incompetent : Guardianship of Forrester, 162 Cal. 493, 123 Pac. 283. The right to appoint a guardian of a minor by will or deed is statutory, and under Sec. 241 of the Cal. Civil Code, a guardian of a legitimate child may be so appointed "by the father -with, the written consent of the mother, or by either parent if the other be dead or incapable of consent ' ' : Mat- ter of Allen, 162 Cal. 625, 124 Pac. 237. Parents are the natural guardians of their children, and can not be deprived of their right to their care, custody, society, and services, except by a proceeding in which it is shown that they are unfit or unwilling or unable to perform their parental duties : Matter of Hart, 21 Cal. App. 30, 130 Pac. 704, Under the provisions of See. 5774, Kev. Codes of Idaho, either the father or mother of a minor being respectively competent to transact his or her own business and not other- wise unsuitable is entitled to the guardianship of the minor child: State v. Beslin, 19 Ida. 185, 112 Pac. 1053. Under the provisions of Sec. 5774, Rev. Codes of Idaho, the surviving parent who is competent to transact his own business, and not unsuitable otherwise, is entitled to the guardianship of his minor children, and a finding that a father is a man of intemperate habits and lacking in integ- rity does not disentitle him to the guardianship of his minor child: In re Crocheran's Estate, 16 Ida. 441, 101 Pac. 741. Under Code Civ. Proc, Sec. 1751, mother has primary right to be appointed in absence of proof that she is not fit to act : In re Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444. Forfeiture of the parent's right does not arise from mere temporary absence or neglect of parental duty : In re Guard- ianship of Snowball, 156 Cal. 240, 104 Pac. 444. Parents can not be deprived of the right to the custody, society, and services of their children, except by proceed- ings in which it is shown that they are unfit, unwilling, or unable to perform their parental duties : Ex parte Hart, 21 Cal. App. 30, 130 Pac. 704. Probate Sup. 4. 2236 PROBATE LAW AND PRACTICE. A judgment taking a young child from the custody of its aunt and giving it temporarily to its dissolute, immoral, and neglectful mother for the purpose of reforming her, is not countenanced by the law: In re Lee, 165 Cal. 279, 131 Pac. 749. The parent of a minor has no property right in his or her offspring, and the privilege of the parent to have awarded to it the custody of the child is only a matter of right when the parent is found to be reasonably fitted to become such guardian: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019. On a contest for letters of guardianship of a minor, when neither of the applicants has any preferential right to the appointment, the court is authorized, under section 246 of the Civil Code, to exercise its discretion in appointing one or the other of the contending parties, having due regard for the considerations set forth in that section : Matter of Allen, 162 Cal. 625, 124 Pac. 237. Under section 1751 of the Code of Civil Procedure, it is the duty of the court to appoint the father or mother of a minor child under the age of fourteen years as its guardian, if such parent is found by the court competent to discharge the duties of guardianship; and inasmuch as the presump- tion of law is in favor of competency, the section is to be construed as if it read that the father or mother is to be ap- pointed if not found by the co\irt incompetent: Matter of Forrester, 162 Cal. 493, 123 Pac. 283. Where the father is competent, he is entitled to letters of guardianship in preference to the grandmother, even though the court may find that the child 's health and welfare would be promoted by granting guardianship to the grandmother: Matter of Forrester, 162 Cal. 493, 123 Pae. 283. (See page 164.) (3) Necessity of petition and notice. Proceedings af- fecting infants and the appointment of guardians are special in their nature, and must be had in accordance with the procedure outlined by the code. The superior court, before GENERAL AND MISCELLANEOUS PROVISIONS. 2237. it is authorized to provide for a change in the temporary custody of the minor, must have had a proper motion pre- sented to it and some evidence of the fact that the best in- terests of the child would be imperiled unless such order was made : Clark v. Superior Court, 20 Cal. App. 305, 1 28 Pac. 1018, 1019. To say that the best interests of a child shall he imperiled before the action indicated by section 1747 of the Code of Civil Procedure, providing for the temporary custody of such minor until a hearing can be had on the petition, can be taken, amounts to no more than to say that whenever it appears to be for the best interest of the minor such change of custody may be ordered: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019. Where a motion to provide for a change in the temporary custody of a minor was presented to the court, and the ac- tion of the court in granting a change of custody can be sustained by any evidence whatsoever, which was presented to the trial court, however slight that evidence may be, the conclusion there reached will not be disturbed on appeal: Clark V. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019. Although section 1750 of the Code of Civil Procedure provides that a child under the age of fourteen must have his guardian appointed by the court, it does not follow that every child under that age is of ''tender years" within the meaning of section 246 of the Civil Code. The sex is to be considered as is also the physical development. There can not be any fixed and certain age of minority, which, in all cases and for all purposes, can be said to constitute a child of "tender years": Russell v. Rvissell, 20 Cal. App. 457, 129 Pac. 467. (See page 165.) (4) Circumstances for consideration. In a proceeding for the guardianship of the person of a minor, the deter- mination from the evidence concerning the character of the petitioning father and other facts bearing on the condition and welfare of the child, as to whether or not he should have the guardianship, is a question largely in the discretion 2238 PEOBATE LAW AND PRACTICE. of the court below. In the present case the evidence is deemed sufficient to support the conclusion of the lower court that the father was not a fit person to have the guard- ianship of the person of a female child of about six years of age: Guardianship of Bedford, 158 Cal. 145, 110 Pac. 302. On an application by a mother to be appointed guardian of the persons and estates of her minor children, which is contested by their aunt on the ground that the mother is not a fit person to act as such guardian, a prior judgment denying an application of the aunt for guardianship of their persons, rendered in a proceeding instituted by her which was contested by the mother, in which her fitness was put in issue and determined in her favor is res adjudieata be- tween the parties as to the mother's fitness to act as guard- ian of their persons, so far as her fitness might be affected by circumstances existing prior to the former hearing, but not by circumstances occurring subseqiiently : Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444. An order removing an infant from the temporary custody of its paternal grandfather, who had applied for final letters of guardianship thereof, and restoring its temporary custody to the mother, subject to restrictions, pending the final hear- ing of the application, that a nurse to whom its mother had committed the charge thereof be retained as such, who should take the child daily to the home of its grandparents, and that the mother should be forbidden to take the child out of the city where the court was held, was a proper order, subject to such restrictions; and there being sufficient evi- dence to support it, as made, it can not be annulled upon certiorari on petition of the paternal grandfather: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018. "When there was nothing to impeach the good faith of a guardian except the statement that he was a client of some of the attorneys in the proceedings that relation would not disqualify him from serving as guardian unless the retainer was in a matter relating to the subject in dispute : Anderson V. McClellan, 54 Or. 206, 102 Pac. 1016. GENERAL AND MISCELLANEOUS PROVISIONS. 2239 Determination from evidence of father's character and other facts bearing on condition and welfare of child ■whether he shall have guardianship of her person, is discretionary with trial court: In re Bedford's Estate (Cal.), 110 Pac. 302. Proof of judgment of divorce against applicant on ground of desertion and awarding custody of child to mother, may be considered, as also may be prior consent of applicant to adoption of infant child by grandmother: In re Bedford's Estate (Cal.), 110 Pac. 302. General statements by witnesses manifestly unfriendly, that child was always filthy and that mother did not keep clean house, are not sufficient to deprive her of guardian- ship : In re Lindner's Estate, 13 Cal. App. 208, 109 Pac. 101. Denial of petition for letters of guardianship is res adju- dicata as to question of fitness of applicant : In re Guardian- ship of Snowball, 156 Cal. 240, 104 Pac. 444. (See page 166.) (5) Bond. Estoppel. (See page 167.) (6) Appointment here, notwithstanding foreign guardian. (See page 168.) HEFERENCES. Desire of aged person to marry as ground for appointment of guardian, see note 47 L. R. A. (N. S.) 475. (7) Validity of appointment. Where the custody of a minor has been given to the father, an oral agreement en- tered into by him in California giving its custody to a third person is valid and binding on the mother, where the parents had separated by agreement: In re Swall, 36 Nev. 171, 134 Pac. 96. A document which recited that a certain person had been appointed by the probate court of a territory as guardian of a minor, and which was signed by the probate judge, who, under the law is his own clerk, had attached thereto a cer- tificate of the same probate judge, to which the seal of the court was attached certifying that the foregoing document was a true copy of the original letters of guardianship as shown by the record of his office. Held that it was in sub- 2240 PROBATE LAW AND PRACTICE. stantial compliance with the provisions of section 368 of the Civil Code of Kansas (Gen. Stats. 1909, Sec. 5963) : Bruek V. Morris, 90 Kan. 64, 132 Pac. 1186. An appointment of a guardian in another state may, for the purpose of securing an appointment of the same guard- ian in this state be proven by the duly authenticated copy of the original appointment, but it is not the exclusive method of proving that such appointment had been made. Other proof admissible under the general rules of evidence may be received for that purpose: Bruck v. Morris, 90 Kan. 64, 132 Pac. 1186. An appointment of guardian of minors by a probate court must be made of record and the non-existence of such a record negatives any appointment : Harrison v. Miller, 87 Kan. 48, 123 Pac. 854. An attempted appointment of another without the consent of the parent is invalid : In re Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444. Interest in property adverse to that of the ward does not necessarily disqualify one from being a personal guardian, where the guardianship of the estate is awarded to another: In re Bedford's Estate (Cal.), 110 Pac. 302. (See page 168.) 2. GUARDIANSHIP OF INDIANS. (1) In general. The royalties and proceeds of an allot- ment of a member of the Cherokee tribe of Indians, shown by the enrollment record to be a minor, are, under the pro- visions of an Act of Congress of May 27, 1908, Oh. 199, 35 Stats. 312, subject to the jurisdiction of the county court in the exercise of its probate jurisdiction, notwithstanding the fact that by extrinsic evidence it may be shown that the said member had in fact attained his majority : Cochran v. Teehee, — Okla. — , 138 Pac. 563. The guardian and mother of two Cherokee minor children made, under section 22 of an Act of Congress approved April 26, 1906 (34 U. S. Stats, at L., Ch. 1876, p. 145), application to the proper court for an order to sell to the proposed pur- GENERAL AND MISCELLANEOUS PROVISIONS. 2241 chaser of the mother's interest, the undivided interest of her minor children and vsrards in the lands, by filing in the court her petition, setting up the price offered and her con- tract to sell her interest to him, and introduced evidence to establish that the price offered was a fair market price. The court made an order directing the sale and directed the guardian to convey to the purchaser of her interest the in- terests of her wards and to execute therefor her deed as guardian and upon report thereof made by the guardian the sale was approved and was held to be a siibstantial com- pliance with said Sec. 22 supra: "VVilson v. Morton, 29 Okla. 745, 119 Pac. 213. Guardians' leases of allotments of Indian minors in the Five Civilized Tribes confirmed and approved by the trial court in that jurisdiction since April 26, 1906, are not sub- ject to the approval or disapproval of the Secretary of the Interior, but the orders of the court confirming them are final : Cowles v. Lee, .35 Okla. 159, 128 Pac. 688. The marriage of a minor male ward member of the Chero- kee tribe of Indians of less than one-half Indian blood, does not of itself terminate his guardianship as to his allotment nor abate the jurisdiction of the county court, and a guard- ian under such jurisdiction has authority to make a sale of said minor's allotted lands: Kirkpatrick v. Burgess, -29 Okla. 121, 116 Pac. 764. The United States court for the southern district of the Jndian Territory had authority to appoint a guardian or curator of the estate of a minor located in that district al- though the domicile of the minor was in the central district and a guardian so appointed, when qualified, had authority to execute a valid lease of the minor's land: Ma Harry v. Eatman, 29 Okla. 46, 116 Pac. 935. By reason of Sees. 1, 2, 6, Act of Congress May 27, 1908, Ch. 199, 35 Stats. 312, pt. 1, the restrictions on the aliena- tion of the allotments of minor freedmen and minor Indians of the Creek tribe of Indians, having less than half Indian blood, are removed, and allotments of such allottees may be sold under the order and supervision of the probate courts 2242 PROBATE LAW AND PRACTICE. of the state of Oklahoma: Jefferson v. Winkler, 26 Okla. 653, 110 Pac. 755. A minor Indian within the meaning of Sees. 1, 2, 6, Act May 27, 1908, Ch. 199, 35 Stats. 312, pt. 1, includes males under the age of twenty-one years and females under the age of eighteen years, and the marriage of such a minor does not confer upon him or her authority to sell his or her al- lotted lands independent of the jurisdiction and supervision of the probate courts: Jefferson v. Winkler, 26 Okla. 653, 110 Pac. 755. A guardianship proceeding pending in one of the United States courts of the Indian Territory at the time of admis- sion of the state was by section 19 of the enabling act (Act June 16, 1906, Ch. 33, 35 Stats. 277) and section 23 of the schedule of the constitution, transferred to the county court of the county in which was located the court in which the case was pending: Eaves v. Mullens, 25 Okla. 679, 107 Pac. 433. A contract entered into subsequent to the passage of the Curtis bill (Act of Congress June 28, 1898, Ch. 517, 30 Stats. 495) and prior to the Creek Treaty of 1901 (Act of Congress March 1, 1901, Ch. 676, 31 Stats. 861) purporting to bind certain infants for the purchase price of improvements upon lands in the Creek nation taken by them as allotments, executed by their natural guardian, who did not submit himself or his actions to a court having jurisdiction, is void as to such infants: Beck v. Jackson, 23 Okla. 812, 101 Pac. 1109. (See page 169.) 3. CONTEOL OF PROPERTY, SUPPORT, MAIN- TENANCE, AND CUSTODY OF AVARD. (1) Control of property. A general guardian of the es- tate of a minor is entitled to the exclusive possession, to- gether with the care and management of the estate of such minor committed to his trust, which can not be limited by order of court as to its custody, and where, on annual settle- ment, the court found the amount due such minor and or- dered the same paid by said guardian to the clerk of the GENERAL AND MISCELLANEOUS PROVISIONS. 2243 court, that part of the order to make such payment is void : In re Bolin's Estate, 22 Okla. 851, 98 Pae. 934. It was the duty of the guardian, as trustee of the invest- ment fund, to retain absolute control thereof, and to with- draw the money from the bank upon the slightest indication of danger or loss. He can not perform his duty promptly if he is clogged by the necessity of procuring the concurrent action of other persons: Estate of "Wood, 159 Gal. 466, 114 Pac. 992. Where there was a relinquishment of control over the permanent investment by the guardian by leaving the bank book in the control of a surety company which was the sole surety on the guardian's bond, so that the guardian could make no draft upon the fund without its consent, the guard- ian thereby became a guarantor of the fund, irrespective of his motive or of whether his surrender of control was the cause of the loss of the fund. "Where the loss occurred through failure of the bank, the court will not inquire, in determining the liability of the guardian, whether such loss was due to his abdication of control of the investment: Estate of "Wood, 159 Cal. 466, 114 Pac. 992. It is held that if it be desired to provide some method by which a surety company may have some control of a trust fund as to which it has merely become surety for an officer of the court, such as a guardian or administrator, to whom the court has given such fimd in charge, the method must be provided by the legislative department of the govern- ment; for the law, as it now stands in this state, does not authorize it: Estate of Wood, 159 Cal. 466, 114 Pac. 992. (See page 170.) (2) Support and maintenance. Guardian can not subject interest in ward's estate to latter 's maintenance without leave of court : Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pac. 640. In view of the provision of section 208 of the Civil Code, that a "parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without 2244 PROBATE LAW AND PRACTICE. an agreement for compensation," the acquiescence of a father in the voluntary support of his child by its grandparents can not be construed as a willful failure by him to support it, within the meaning of subdivision 4 of section 246 of the Civil Code : Matter of Forrester, 162 Cal. 493, 123 Pac. 283. Orders made by the guardianship court, from time to time, for the withdrawal of funds from the possession of the administrator for the support of the wards do not indicate any knowledge on the part of the court that the guardian had made any permanent deposit of the funds, nor imply any ratification of the same or of the mode of the control thereof: Estate of Wood, 159 Cal. 466, 114 Pac. 992. (See page 170.) (3) Contract for support. (See page 171.) (4) Support of abandoned child. (See page 172.) (5) Custody of ward. Access. (See page 172.) 4. DUTIES AND POWERS OF GUARDIANS. (1) In general. A guardian's deed made without any order or authority from any court is a nullity: Palmer v. Abrahams, 55 Wash. 352, 104 Pac. 649. (See page 172.) (2) Powers of guardian as to contracts. (See page 173.) (3) Power of guardian to assign appropriation made for ward by probate court. (See page 174.) REFERENCES. Right of guardian to surrender policy in favor of ward, see note 35 L. R. A. (N. S.) 1123. 5. RIGHTS AND POWERS OF GUARDIANS. (1) Guardian may do what. Where a guardian pur- chased his ward's property for its full value and in due time accounted fully and fairly for the purchase money it was not a wrongful act for him to use the ward's money to make payments on account of the price when he himself person- GENERAL AND MISCELLANEOUS PEOVISIONS. 2245 ally was quite respoDsible for the amount and had given ample security therefor : Smith v. Smith, 45 Mont. 535, 125 Pac. 1002. (See page 174.) REFERENCES. As to right of guardian to compromise Infant's cause of action for personal injuries, see note 21 L. R. A. (N. S.) 338. Power of guardian to redeem legacy, see note 28 L. R. A. (N. S.) 401. Power of court of guardian of incompetent or habitual drunkard to consent to conveyance by trustee under a trust requiring consent by the cestui que trust, see note 39 L. R. A. (N. S.) 39. (2) Guardian can not do what. Where the husband was appointed as guardian of the minor children by the probate court, he had no power to bind their interests by contract or by mechanics ' liens without an order of the court : County of Los Angeles v. Winans, 13 Cal. App. 234, 109 Pac. 641. (See page 175.) (3) Actions by guardian. Mother is not empowered to sue for her children where her husband is regularly ap- pointed guardian : Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pac. 640. (See page 177.) (4) Actions against guardians. Under section 5641, Comp. Laws of Oklahoma 1909, requiring a guardian who defends for a minor to put in issue all the material allega- tions of the petition, and section 5649, providing that it is unnecessary for such a guardian to verify his answer iv order to put in issue the execution of written instruments and endorsements thereon, a general denial filed by such guardian puts in issue every material allegation of a peti- tion, including allegations of Jhe execution of written in- struments 4nd other allegations which an adult must deny under oath : Sims v. Hedges, 32 Okla. 683, 123 Pac. 155. A separate suit will lie on behalf of each of several wards where each has severable claim against guardian's estate . and where guardian converts ward's money and so mingles same as to prevent tracing, though wards present claim as 2246 PROBATE LAW AND PRACTICE. "joint claimants": Miller v. Ash, 156 Cal. 544, 105 Pac. 600. (See page 177.) 6. INVESTMENT BY GUAKDIAN. The measure of care and skill required of a guardian in the investment of his ward's funds is such as would be exer- cised by a man of ordinary prudence and skill in the man- agement of his own business : Estate of Wood, 159 Cal. 466, 114 Pac. 992. The necessity of temporarily depositing trust funds in a bank for safe keeping is recognized, and if a trustee, for the purposes of such temporary deposit, exercises the degree of care and skill stated in the selection of a bank, and so ear- marks the deposit as to show its trust character, he is not responsible for the failure of the bank; but if he deposits the money in his individual real name, without any designa- tion or indication of his representative character, he is gen- erally liable in the event of loss through the failure of the bank, notwithstanding he has not been guilty of any. negli- gence : Estate of Wood, 159 Cal. 466, 114 Pac. 992. (See page 178.) 7. SALES OF LAND. (1) In general. A county court in Oklahoma having acquired jurisdiction of the person and estate of a minor, may order the sale of the land of said minor situate in an- other county and may also confirm the sale and order a guardian's deed to be made accordingly: Dewalt v. Cline, 35 Okla. 197, 128 Pac. 121. A probate court is powerless to divest minors of their title to real estate, except through a guardian duly appointed and in accordance with the statute : Harrison v. Miller, 87 Kan. 48, 123 Pac. 854. (See page 180.) (2) Petition for. A petition of a guardian for an order of sale of his ward's real estate must be filed iu the county court of the county in which he was appointed guardian; but the petition is not required to show affirmatively that GENERAL AND MISCELLANEOUS PROVISIONS. 2247 the ward resides in the county where it is filed, in order to give the court jurisdiction: Eaves v. Mullen, 25 Okla. 679, 107 Pac. 433. (See page 181.) (3) Notice. Publication. There is no requirement of statute in the state of Oklahoma that notice shall be given by a guardian of his intended application for an order of sale of his ward's real estate: Spade v. Martin, 28 Okla. 384, 114 Pac. 724. (See page 183.) (4) Additional bond. (See page 184.) (5) Order for. Under Gen. Stats. 1909, See. 4829, pro- viding that a guardian can sell his ward's real estate only upon the order of the probate court, a guardian's contract for the conveyance of his ward's land has no legal standing until approved by the probate court : Nichols v. Bryden, 86 Kan. 941, 122 Pac. 1119. (See page 184.) (6) Validity of. A guardian's sale of her infant wards' interest in real estate may be specifically enforced at the suit of the infants brought by them through their guardian and next friend, the title of the purchaser will be good, and by virtue of the decree of specific performance all doubt respecting the marketability of the title will be removed: Grey v. Hanson, 86 Kan. 933, 122 Pac. 879. (See page 186.) (7) Purchaser and his rights. An appeal may be taken by the purchaser at a guardian's sale from the county court to the district court from an order refusing to confirm the sale, under section 1793, Wilson's Rev. and Ann. Stats. 1903 (See. 5451, Comp. Laws 1909 of the state of Oklahoma) : In re Billy, 34 Okla. 120, 124 Pac. 608. (See page 188.) (8) Setting aside. Under section 5323 Comp. Laws of Oklahoma 1909, where upon a hearing on return of sale, an advance bid of 10 per cent is made to the court in writing by a responsible person, the court is not limited to the alter- native of accepting the first offer that may be made, or or- dering a new sale, but should receive as many bids as may be made, and upon a consideration of all the bids, determine whether to accept the highest bid submitted by a responsible 2248 PROBATE LAW AND PBACTICE, bidder or order a new sale: In re Bohanan, 37 Okla. 560, 133 Pae. 189. (See page 189.) (9) Collateral attack. Where a petition in a suit to quiet title to certain land alleges that an order of coiirt di- recting a guardian to sell the land was procured by fraud and prays to have the order of sale and subsequent orders approving the sale cancelled, the suit is a direct attack and not a collateral attack : Brown v. Trent, 36 Okla. 239, 128 Pac. 895. (See page 191.) 8. LEASE AND DEMISE OF WARD'S PROPERTY. While at common law all leases by a guardian to extend beyond the term of the guardianship were voidable, a lease of a minor's land pursuant to an order of the probate court was valid, though it extended beyond minority: Cowles v. Lee, — Okla. — , 128 Pae. 688. While at common law all leases by a guardian to extend beyond the term of the guardianship were voidable, a lease of a minor's land pursuant to an order of the probate court is valid though it extends beyond minority: Hustin v. Cob- leigh, 29 Okla. 793, 119 Pac. 416. A lease of oil and gas mining privileges made by the guardian of a minor, permission of the court having first been obtained and such lease having been approved and confirmed by the court, though without the preliminary no- tices essential for the order of sale and confirmation of the same in case of the sale of real estate of minors by guard- ians, is valid against a collateral attack: Duff v. Keaton, 33 Okla. 92, 124 Pac. 291. A lease execated by a natural guardian who has not sub- mitted himself or his actions to a court having jurisdiction, nor executed a bond, nor procured an order to lease, is void as to such infant, at his or the option of thoae who legally represent him : Capps v. Hensley, 23 Okla. 311, 100 Pac. 575. An allotment of an infant, without a legal guardian, living with his father, who is his natural guardian, having been leased by said natural guardian at the rate of 25 cents per GENERAL AND MISCELLANEOUS PROVISIONS. 2249 acre per year for a period of five years, and for improve- ments to be made thereon, to consist of breaking land, building fences and houses benefiting such estate, such con- tract having been entered into in good faith by all parties thereto, believing it to be a substantially fair contract, and authorized under the lavr, said father, having aftervs^ard been appointed as legal guardian, repudiating said contract, the value of such improvements will be allow^ed out of the rents in an accounting: Muskogee Development Co. v. Green, 22 Okla. 237, 97 Pac. 619. (See page 193.) 9. MORTGAGE OP WARD'S PROPERTY. (1) Petition, as foundation of jurisdiction. (See page 194.) (2) Authority to mortgage. In Kansas the probate court has jurisdiction to authorize a guardian to execute a mort- gage upon real estate owned by several wards giving a lien upon all the property for the whole debt secured: First Nat. Bank of Winfield v. Bangs, — Kan. — , 136 Pac. 916. Under a decree of divorce community property consisting of a house and lot was set aside for the use, support, main- tenance, and education of the minor children. The mother was awarded the custody of the children and afterward was appointed their guardian. There was a mortgage on the property. The court granted the guardian permission to borrow more money on the property to pay off the original mortgage and provide further funds for the maintenance and education of the children. Held that this was proper and within the purposes of the trust created by the decree of divorce : Schmitt v. Jornson, — Nev. — , 140 Pac. 519. (See page 194.) (3) Validity of order and mortgage. (See page 196.) (4) Revival and foreclosure of former mortgage. (See page 196.) 2250 PROBATE LAW AND PRACTICE. 10. NONRESIDENT GUARDIANS AND WARDS. In the absence of evidence it will be presumed that the statutory provisions of a foreign state regulating the rights of guardian and ward are the same as those of the former: Nichols V. Bryden, 86 Kan. 941, 122 Pac. 1119. 11. ACCOUNTINa AND SETTLEMENT. (1) In general. After wards have become of age for some time it is to be presumed that the guardian has made an accounting which has been approved by the court : First Nat. Bank of Winfield v. Bangs, — Kan. — , 136 Pac. 917. The arrival of a ward at majority terminates the guard- ianship, except for the purposes of accounting and settle- ment with the ward : Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52. A guardian should present his final account for settlement upon the ward attaining majority: Miller v. Ash, 156 Cal. 544, 105 Pac. 600. If the guardian dies after the ward attains his majority without having presented it, his personal representative can not, in the absence of statute, make presentation in his stead : Miller v. Ash, 156 Cal. 544, 105 Pac. 600. (See page 198.) (2) Duty to account. It is within the province of the court to require guardians to settle the accounts of their wards, even after the letters of guardianship have been revoked: Title Guaranty & Trust Co. v. Hinkel, 35 Okla. 128, 128 Pac. 696. (See page 199.) (3) Jurisdiction of courts. (See page 200.) (4) Exceptions to account. (See page 201.) (5) Admissibility of evidence. (See page 202.) (6) Proper charges against guardian. (See page 203.) (7) Credits allowable to guardian. A guardian should be allowed all necessary expenses in caring for the ward's GENERAL AND MISCELLANEOUS PROVISIONS. 2251 person and estate, but the judgment of the lower court should be followed unless it appears that the same is con- trary to the preponderance of the evidence and not made with due consideration of all the pertinent facts: In re Bayer, — Wash. — , 141 Pae. 684. (See page 204.) (8) What is not to be allowed. Compensation. Mere mistakes in keeping accounts with the estate, where no fraud is shown, do not forfeit a guardian's right to com- pensation for his services : Rogers v. Lindsay, 89 Kan. 180, 417, 131 Pac. 150. The law provides that a guardian is to have such com- pensation for his services as the court in which his accounts are settled deems just and reasonable; but of course a faith- ful stewardship is contemplated and while a mere technical breach of duty which does not result in injury to the ward 's estate will not ordinarily jiistify a court in withholding com- pensation altogether, a flagrant violation of the duties of the trust will do so : In re Allard, — Mont. — , 141 Pac. 664. In the settlement of accounts between guardian and ward where the guardian was the ward's stepfather and previous to his appointment as guardian had paid for the care and support of his stepchild out of his own means without any expectation of ever being reimbursed, none of such expenses should be allowed, but only expenses incurred after he was appointed legal guardian: In re Harris, — Ariz. — , 140 Pac. 828. (See page 205.) (9) Death of ward before settlement. Where an order is made by the county court confirming a guardian 's sale of real estate, and on appeal to the district court the judgment of the county court is sustained and an appeal is then taken to the supreme court and the judgment below superseded, and where pending the appeal the ward dies, the proceedings can not longer be sustained and should be dismissed : In re Bohanan, 37 Okla. 560, 133 Pac. 45. (See page 207.) (10) Conclusiveness. Attacking settlement. Where an order of settlement and discharge of a guardian was made without notice to or knowledge of the wards and the guard- Probate Sup. 5. 2252 PROBATE LAW AND PRACTICE. ian's accounts had neither been settled by the court nor between the guardian and his wards and the guardian con- tinued to hold himself out as guardian, the settlement and discharge were therefore ex parte and determined nothing as between the guardian and his wards: Sroufe v. Sroufe, 74 Wash. 639, 134 Pac. 473. A guardian will not be permitted to testify in a manner to impeach the final settlement of his guardianship accounts, regularly made by the court : Title Guaranty & Trust Co. v. Slinker, 35 Okla. 128, 128 Pac. 696. The periodical or partial settlements of guardians are, at most, after approval by the court, but prima facie evidence of their correctness and may be rectified or rebutted on a final accounting. They are not settlements but only the exhibition of accounts, nor .judgments, being merely ex parte presentations of the status of the estate in the hands of the guardian : American Bonding Co. v. People, 46 Colo. 460, 104 Pac. 83. The term "final accounting" or "final settlement" implies an accounting or settlement after the severance of the rela- tionship between guardian and ward and unless an event has transpired which causes such severance, a settlement can not be final. The reason of the rule is that the liability of the guardian extends beyond the time of the settlement: American Bonding Co. v. People, 46 Colo. 460, 104 Pac. 83. A settlement made under Sees. 2084, 2093, and 4728 Mills Ann. Stats, of Colorado is a final account regularl}' made and constitutes a judgment conclusive between the ward on one side and the guardian and surety on the other imless impeached in the court in which it was rendered by proof of fraud or such other defects as would invalidate judg- ments of other courts: American Bonding Co. v. People, 46 Colo. 460, 104 Pac. 83. (See page 207.) (11) Discharge of guardian. A regular appointment of a guardian gives the court jurisdiction over the person and estate of the ward and such jurisdiction continues until the ward attains his majority, when the right of the court or GENERAL AND MISCELLANEOUS PROVISIONS. 2253 guardian to manage the estate and the person of the ward ceases: Section 6401, Ballinger's Ann. Codes and Stats. (Pierce's Code, Sec. 2735). If a ward has attained majority when the final account of a guardian is filed, no guardian ad litem is necessary or proper. His personal appearance is sufficient to give the court jurisdiction and where the Avard appears on the application for discharge and the hearing on the guardian's final report and it then appearing to the court that the ward had arrived at full age the court had jurisdiction to enter an order of final discharge and cast the burden thereafter upon the ward to manage his own estate. If, therefore, in another proceeding it shoiild be subsequently shown to the court that its finding as to the arrival of the ward at full age was erroneous such finding is not void but voidable only and is binding on the ward and those in privity with him until vacated or set aside for fraud or for error: Meeker v. Mettler, 50 Wash. 473, 97 Pac. 508. (See page 208.) 12. COLLATERAL ATTACK. (See page 209.) 13. JURISDICTION OF COURTS. (See page 210.) 14. JURISDICTION OF EQUITY. A guardian can not apply to a court of equity for leave to sell property of the ward but must make the application to the court from which he received his appointment of guard- ian : Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pac. 640. (See page 212.) 15. LIABILITY OF GUARDIANS. (1) For investments made without order of court. In an action by a mother to foreclose a mortgage for $3000 taken by her to secure a loan made by her of $2400 of her minor daughter's money, as natural guardian without appointment as legal guardian, it appearing that the mother subsequently pledged the note for the daughter's money and the mortgage to secure a private loan to her of $1500 by the intervenor, the court properly found and adjudged that since the result of a prior suit by the intervenor to foreclose the mortgage, 2254 PKOBATE LAW AND PRACTICE. to which his right was limited, the daughter had acquired both the note of $2400 of her money and the $3000 note and mortgage to secure the same, and that she was entitled to foreclose the mortgage, and that the intervener was entitled to be paid the sum of $1500 with interest out of the proceeds of sale, and that the remainder of the proceeds should be paid to the daughter: StuU v. Benedict, 10 Cal. App. 619, 102 Pae. 961. A loan by a guardian of the ward's money without strict compliance with the statutory requirements as to such loan is at the guardian 's peril : American Bonding Co. v. People, 46 Colo. 460, 104 Pae. 84. Changing form of investment held to require leave: Code Civ. Proc, Sees. 1768, 1770, 1772; Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pae. 640. In the absence of an order of court permitting it, a deposit by the guardian of the funds of his ward in a bank for per- manent investment is, in effect, a loan to the bank on per- sonal security only, which is not a proper exercise of due care. In such ease, the guardian is liable to make good the loss of such permanent investment as the result of the failure of the bank: Estate of Wood, 159 Cal. 466, 114 Pae. 992. (See page 214.) (2) Protection of order of court. A private sale of the land of a minor by his guardian for investment, made under order of court and confirmed by the court if irregular is not void on collateral attack: Spade v. Morton, 28 Okla. 384, 114 Pae. 724. Kendering property subject to mechanic's lien held to re- quire leave of court: Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pae. 640. Binding property by contract held to require leave, and attempt will give party with whom he contracts no lien for labor or materials : Los Angeles County v. Winans, 13 Cal. App. 234, 109 Pae. 640. GENERAL AND MISCELLANEOUS PROVISIONS. 2255 The only action of the guardianship court which will pro- tect a guardian in the matter of the investment of the funds of the ward must be action had under such circumstances as show a bringing of such matter by the guardian to the at- tention of the court for an adjudication thereon: Estate of Wood, 159 Cal. 466, 114 Pac. 992. (See page 215.) (3) Liability of guardian in general. When a guardian in good faith and under the order of the probate court de- posits funds belonging to his ward in a bank outside the ter- ritory of Alaska and such fund is lost by the failure of the bank during a financial stringency, the guardian is not liable for the loss : In re Guardianship of Corcoran, 3 Alaska 263. (See page 215.) REFERENCES. Guardian carrying on business of ward, see note 40 L. R. A. (N. S.) 205. Personal liability of a guardian for losses to ward's estate from investments, see note 44 L. R. A. (N. S.) 873. 16. EMBEZZLEMENT BY GUARDIAN. Where a guardian of two minor wards converts to his own use a fund a respective half of which belonged to each of the wards in severalty, each of them acquires a separate claim against the guardian for his portion of the fund so converted : Miller v. Ash, 156 Cal. 544, 105 Pac. 600. Where the evidence shows that the wards had received more than the amount due them from the estate it was held that a charge against the guardian and others of conspiracy to defraud was not maintained: Smith v. Kent Lumber Co, — Wash. — , 138 Pac. 879. An action may be maintained in the district court against the administrator of a guardian who converted his wards' money, became insolvent and died, and against the sureties on the guardian's bond, without a previous settlement of the guardian's accounts in the probate court: Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782, 136 Am. St. 97. 2256 PROBATE LAW AND PRACTICE. Where guardian was appointed when wards were only- twelve and fourteen years of age, year after received $4000 for wards, which he never accounted for, and suit was insti- tuted over forty-four years after, shortly after discovery of conversion, it was held that the lapse of time was no defense to the action : Miller v. Ash, 156 Cal. 544, 105 Pac. 600. (See page 217.) 17. REMOVAL OF GUARDIAN. A guardian is not a "public officer" within Gen. Stats. 1009, See. 3624, subd. 9 of Oklahoma, providing that quo warranto may be brought in the supreme court when any person shall unlawfully hold any public office ; and hence the supreme court has no jurisdiction to entertain an action in quo warranto to oust a guardian: Linderholm v. Ekblad, — Kan. — , 139 Pae. 1015. 18. RIGHTS AND LIABILITIES OF WARD. (1) In general. (See page 218.) (2) Actions by ward. An action for a balance claimed to be due from a guardian to his ward at the time the latter reached the age of majority is not an action for relief on the ground of fraud: Hawk v. United States Fidelity and Guaranty Co., 83 Kan. 775, 112 Pac. 602. Where a corporation leases a minor 's land from her guard- ian for oil and gas purposes paying therefor to the guardian for the use of his ward, $40 an acre bonus and an eighth royalty, and at the same time and as a part of the same consideration, pays to the guardian for his own use and benefit, $20 an acre for the improvements on the land, claimed by the guardian to be his property, when in fact such improvements were purchased with the money belong- ing to the ward, the ward may maintain an action against such corporation for a cancellation of the lease. But where such action is commenced by the ward after majority, and she sets out in her petition all of the facts relative to the fraudulent transaction between the corporation and her guardian, and verifies the same, and when such ward is a GENERAL AND MISCELLANEOUS PROVISIONS. 2257 person of ordinary intelligence, if thereafter she vr luntarily makes final settlement with her guardian, receiving from him valuable property and money, knowing said property and money to be the proceeds of siieh lease, such settlement is a ratification of the lease : Lasoya Oil Co. v. Zulkey, — Okla. — , 140 Pac. 160. (See page 218.) (3) Actions against ward. Where a firm of attorneys is employed by the acting guardian of the estate of minor heirs to perform legal services and such employment is ordered and sanctioned by the probate court and it appears that such services were necessary and beneficial to the estate, and that the charges therefor were reasonable and just and where the judgment for the amount claimed is sufficiently supported by the evidence, such judgment will not be disturbed : Parnell V. Washington, — Okla. — , 139 Pac. 121. (See page 220.) (4) No disaffirmance of parol petition vsrhen. (See page 221.) 19. BOND OF GUARDIAN AND LIABILITY THEREON. (1) Failure to give a bond. (See page 221.) (2) Purpose of bond. The general bond required of a guardian is intended to secure to the infant the proper ac- counting for all funds, from whatever source they may be derived, that may come into the hands of the guardian; the special or "sales" bond required by statute is cumulative security required and given for the benefit of the ward, and a failure on the part of the guardian to account for the pro- ceeds of a sale of real estate will not excuse or absolve his sureties on his original or general guardian's bond: South- ern Surety Co. v. Burney, 34 Okla. 552, 126 Pac. 748. (See page 222.) (3) Breach of bond. (See page 222.) (4) New bond. (See page 222.) Where a guardian's bond runs to several wards jointly they are not all necessary parties plaintiff, the bond being to protect the individual rights of each ward and th-e de- 2258 PROBATE LAW AND PRACTICE. termination of the controversy will not prejudice the rights of the other wards, but if necessary the court may order them to be brought in: IJ. S. Fidelity & Guarantee Co. v. Parker, 20 Wyo. 29, 121 Pac. 536. (See page 222.) (5) Action on bond. A minor by his legal guardian may maintain an action on the official bond of a former guardian, although the bond, which was executed prior to statehood, was made payable to the United States of America: Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128, 128 Pac. 696. (See page 222.) (6) Liability of sureties. AVhere a guardian, besides the bond given when he was appointed, gave two other bonds conditioned the same as the first, as additional security for the performance of his duties as guardian, all of the sureties upon the several bonds could be .ioined in one suit, to recover the amount due from the guardian to his successor upon his removal as guardian : People 's Bank & Trust Co. v. Nelson, 37 Okla. 500, 132 Pac. 493. Under the law in force in the Indian Territory prior to statehood, sureties on a guardian's bond were liable for moneys misappropriated by him as such guardian whether before or after the execution of such bond: People's Bank & Trust Co. V. Nelson, 37 Okla. 500, 132 Pac. 493. Sureties on a guardian's bond are, in the absence of fraud, concluded by the decree of the court, duly entered in a hear- ing on an accounting, or final settlement, as to the amount of the principal's liability, although the sureties are not parties to the accounting: Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128, 128 Pac. 696 ; see also Southern Surety Co. V. Burney, 34 Okla. 552, 126 Pae. 748. Where a surety bond is executed upon a consideration of a company organized to make such bonds for profit the com- pany does not stand in the position of a surety for accommo- dation: United States Fidelity & Guarantee Co. v. Parker, 20 Wyo. 29, 121 Pac. 536. GENERAL AND MISCELLANEOUS PROVISIONS. 2259 A guardian who had been appointed by a district court in Montana died in another county of that state and an ad- ministratrix of his estate was appointed by the district court of the latter county. One of the wards presented a claim to the administratrix for a divestment by the guardian. The claim was rejected, suit brought, and judgment rendered against the administratrix. Held in an action against the surety on the guardian 's bond that a settlement of the guard- ian 's accounts in the coiirt of his appointment was not a condition precedent to the right to recover on the bond: United States Fidelity & Guarantee Co. v. Parker, 20 Wyo. 29, 121 Pac. 534; Same v. Nash, 20 Wyo. 65, 121 Pac. 542. Under a guardian's bond which runs to several wards jointly the aggregate liability can not exceed the amoiJnt of the penalty whether recovery is had jointly or severally: United States Fidelity & Guaranty Co. v. Parker, 20 Wyo. 29, 121 Pac. 536 ; Same v. Nash, 20 Wyo. 65, 121 Pac. 544. A guardian appointed to succeed a widowed mother who had been guardian of her minor children and had filed a report and afterward appropriated her wards' estate, brought suit against the surety on the mother 's guardianship bond. In her report the mother guardian had not made any charge for the support of the minor children. Held that the surety was precluded by the report from setting off an amount for such support in reduction of his liability on the bond : In re Mackall, 60 Wash. 655, 111 Pac. 885. It is a general principle that sureties on a guardian's bond are liable only for the money or property that actually was or came into the hands of the guardian during the term cov- ered by the bond on which they were sureties, and that penal bonds are never held to be retrospective in their operation unless plainly so intended and expressed : American Bond- ing Co. V. People, 46 Colo. 394, 104 Pac. 83. (See page 224.) REFERENCES. Liability of sureties on guardian's bond for defalcation prior to the execution thereof, see note 39 L. R. A. (N. S.) 961. Liability of sureties on general bond of guardian, as affected by a special bond, see note 43 L. R. A. (N. S.) 308. 22G0 rEOBAIL- LAW AND PRACTICE. (7) Defense to action. (See page 225.) (8) Limitations of actions. (See page 225.) 20. LIMITATIONS OP ACTIONS. Action to set aside a void sale by a guardian where thfe purchaser has taken and retains possession must be brought within five years after the recording of the guardian's deed or within two years after removal of plaintiff's disability, under Comp. Laws of Okla. 1909, Sees. 5547-5549 : Dodson V. Middleton, 38 Okla. 763, 135 Pac. 369. In an action in the nature of an accounting brought against the representative of a deceased guardian by the ward more than six years after the final settlement of the guardian in the probate court and the attainment of the majority of the ward and where it appears from the evidence that the mistake or constructive fraud could have been dis- covered at the time of the settlement, the finding of the court that the ward has been guilty of laches and can not maintain the action will not be disturbed : Rogers v. Lind- say, 89 Kan. 180, 131 Pac. 611. The five year limitation prescribed under heading "Sec- ond," section 5608 of the Gen. Stats, of 1909, Kansas (Code of Civil Proc, See. 15) does not apply in an action for the recovery of land which was sold by one as guardian who had not been so appointed: Harrison v. Miller, 87 Kan. 48, 123 Pac. 854. A cause of action against a guardian for a balance of money due to his ward at the time the latter reached the age of majority accrues at that time, and is a liability cre- ated by statute, to which the three year period of limitation prescribed by the statute applies: Hawk v. United States Fidelity & Guaranty Co., 83 Kan. 775, 112 Pac. 602. (See page 226.) 21. APPEAL. (1) In general. An appeal from a jiudgment against a guardian in an action prosecuted by him in his own name GENERAL AND MISCELLANEOUS PROVISIONS. 2261 as guardian, must be commenced within one year after the rendition of the judgment, and all necessary parties to the proceeding must be brought into the appellate proceedings, either by summons in error or by entry of general appear- ance, within that period, or the appeal will be dismissed: John V. PauUin, 24 Okla. 636, 104 Pac. 365. An appeal from an order appointing a guardian can not be taken before the order is entered: In re Dunphy's Es- tate, 158 Cal. 1, 109 Pac. 627. (See page 227.) (2) Appealable orders. (See page 227.) (3) Findings. Upon a petition to revoke letters of guard- ianship of an incompetent person, and to appoint petitioner as guardian, where the order for the citation to issue is in the record, but not the citation itself, though the record recites that citation was issued pursuant to the order, and the guardian came in and answered fully, she has no cause to complain upon appeal that the citation had no sufficient statement of the proceeding to enable her to answer the petition : Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. (See page 228.) (4) Effect of, as stay. The power of one appointed guardian of the person and estate of an incompetent person is stayed pending an appeal from the order of appointment, by the filing of the undertaking on appeal provided for by section 941 of the Code of Civil Procedure. If the guardian, notwithstanding such appeal, threatens to take possession of the property of the incompetent and to act as his guardian pending the appeal, a writ of supersedeas will be issued against him: Coburn v. Hynes, 161 Cal. 685, 120 Pac. 26. (See page 228.) (5) Record. Presumption. (See page 229.) (6) Affirmance. Reversal. In an action by a mother for an accounting of guardianship of her estate by her son, the value of which was determined, in which the son set up a counter claim for board and lodging of the mother which ^he trial court disallowed, where the only question upon 2262 PROBATE LAW AND PEACTICB. appeal from the judgment relates to the disallowance of such counter claim, and the record upon appeal shows no agreement or understanding that such board and lodging was to be paid for, the only question is whether such prom- ise could be implied; and where the circumstances are such as to warrant the trial court in inferring as a fact that no promise was implied, the judgment must be affirmed : Crane V. Derrick, 157 Cal. 667, 109 Pac. 31. Upon appeal by a mother after the death of the father, from an order refusing her petition for appointment as guardian of the person and estate of her young child three years of age, upon a finding of her unfitness to have the care and custody of the child, where the evidence fails to sustain such finding, the judgment and order denying her petition must be reversed: Estate of Lindner, 13 Cal. App. 208, 109 Pac. 492. Section 966 of the Code of Civil Procedure, providing that "when the judgment or order appointing an executor or administrator, or guardian is reversed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts iu administration upon the estate performed by such execu- tor, or administrator, or guardian, if he have qualified, are as valid as if such judgment or order had been affirmed," does not give the guardian the right to act as such during the pendency of the appeal : Cobum v. Hynes, 161 Cal. 685, 120 Pac. 26. (See page 229.) (7) Dismissal. (See page 229.) 22. HAWAII. There being no statute in the territory of Hawaii provid- ing for or controlling the appointment of guardians ad litem the courts of that territory proceed upon their inherent authority, and the appointment of a guardian ad litem of minor defendants need not be made by a formal order. Any action on the part of the court whereby a person assuming to act as a guardian ad litem is recognized as such is equiva- lent to an appointment: Lakua v. Manaia, 21 Haw. 160. GENERAL AND MISCELLANEOUS PKOIi'tSIONS. 2263 A guardian's promise to pay ward's debts incurred prior to his appointment, being without consideration, is not ac- tionable : Kane v. Madeiros, 19 Haw. 564. 23. DISQUALIFICATION OP JUDGE. A judge is disqualified to sit in guardianship proceedings where the guardian is his brother-in-law, the guardian being "a party" within the meaning of Oklahoma Comp. Laws 1909, See. 2012, which provides that "No judge of any court of record shall sit in any cause or proceeding in which he may be related to any party to said cause, within the fourth degree of consanguinity or affinity": Hengst v. Bur- nett, — Okla. — , 135 Pac. 1063. 2264 PROBATE LAW AND PKACTICE, CHAPTER VII. GUARDIANSHIP OF INSANE PERSONS AND OTHER INCOM- PETENTS. § 161. Notice of time and place of hearing. § 162.- CertlHcate of inability to attend. § 168. Powers and duties of guardians. 1. Sanity and disability. 2. Jurisdiction of probate courts. 3. Appointment of general guardian. (1) Petition for. Authority of court (2) Notice and personal presence. (3) Validity of notice. (4) Notice by publication. (5) Collateral attack. (6) Revocation of appointment. 4. Guardian ad litem. 5. Support, maintenance, and custody. 6. Powers, duties, and liabilities of guardians. (1) In general. (2) As to attorneys and their fees. (3) Conduct of ward's business. (4) Actions by guardian. (5) What is no defense to action. 7. "Conservators" in Colorado. (1) Appointment. Notice. Jury. (2) Duties. Investment of funds. (3) Exceptions to report. Compensation. Removal. Dis- charge. 8. Report, account and settlement of guardian. 9. Contracts and rights of insane persons. 10. Adjudication of insanity and its effect. (1) In general. (2) Presumption and evidence. 11. Restoration to capacity. Termination of guardianship. 12. Proceedings against insane persons. (1) In general. (2) Judgment. Execution. Limitation of actions. 13. Appeal and review. § 161. Notice of time and place of hearing. When it is represented to the superior court, or a judge thereof, upon GUAKDIANSHIP OP INSANE AND INCOMPETENTS. 2265 verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, such court or judge must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the ease, not less than five days before the time so appointed, and such person, if able to attend, must be produced on the hearing, provided that when such person is a patient at a state hospital in this state, the certificate of the medical superintendent or act- ing medical superintendent of such state hospital, to the effect that such patient is unable to attend such hearing shall be prima facie evidence of such fact. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1939), §1763. § 162. Certificate of inability to attend. When it is rep- resented to the superior court, or a judge thereof, upon veri- fied petition of any relative or friend, that any person is in- sane, or from any cause mentally incompetent to manage his property, such court or judge must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed, and such person, if able to at- tend, must be produced on the hearing, provided that when such person is a patient at a state hospital in this state, the certificate of the medical superintendent or acting medical superintendent of such state hospital, to the effect that such patient is unable to attend on the hearing shall be prima facie evidence of such fact. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1941), § 1763a. § 168. Powers and duties of guardians. Every guardian appointed, as provided in the preceding section, has the care and custody of the person of his ward and the management of all his estate, or the care and custody of the person of his ward or the management of all his estate, according to the order of appointment, until such guardian is legally dis- charged, and he must give bond to such ward in like manner and with like conditions as before prescribed with respect to the guardian of a minor. — Kerr's Cyc. Code Civ. Proc. (Kerr's Cum. Supp., p. 1941), § 1765. 2266 PROBATE LAW AND PRACTICE. GUARDIANSHIP OF INSANE PERSONS AND OTHER INCOM- PETENTS. 1. SANITY AND DISABILITY. The fact that a man 76 years of age desires to marry is not sufficient ground for the appointment of a guardian of his property : Hogun v. Leeper, 37 Okla. 655, 133 Pac. 190. Generally one is presumed to be sane, and the burden is upon one asserting the contrary to prove it ; but the appoint- ment of a guardian for one alleged to be insane by a court having jurisdiction creates a presumption of insanity: Schindler v. Parzoo, 52 Or. 452, 97 Pac. 757. To justify appointment under Code of Civil Procedure, sections 1763, 1764, it must appear that insane person's mind is so afEected as to prevent comprehension of values and prudent management of property: In re Coburn, 11 Cal. App. 604, 105 Pac. 924. Under Code of Civil Procedure, section 1870, subdivision 10, permitting opinion of acquaintance as to sanity of per- son, reason for opinion being given, person giving opinion must state reason on which it is based, and opinion has no weight other than that which reason brings to its support: In re Coburn, 11 Cal. App. 604, 105 Pac. 924. It is error to permit witness to give opinion as to ability of person to manage his property, and as to whether he is liable to be imposed upon by designing parties: In re Coburn, 11 Cal. App. 604, 105 Pac. 924. The willful failure of a father to maintain his child, al- though it may be shown as one of the items of evidence bearing upon the question of his competency, is not the same thing as incompetency, and will not support a conclusion to that effect : Matter of Forrester, 162 Cal. 493, 123 Pac. 283. (See page 243.) 2. JURISDICTION OF PROBATE COURTS. The superior courts of the state of "Washington have an inherent jurisdiction to protect the estate of nonresident GUAKDIANSHIP OF INSANE AND INCOMPETENTS. 2267 incompetent persons ; and while it is generally said that the power to appoint guardians is purely statutory, the power in fact lies in the sovereignty of the state, and the procedure only is statutory : In re Sail, 59 "Wash. 539, 110 Pac. 33, 140 Am. St. 885. Under its constitutional and statutory powers the superior court of the state of Washington has power to appoint a nonresident the guardian of such of the estate of an incom- petent nonresident as is within the state of Washington : In re Sail, 59 Wash. 539, 110 Pac. 33, 140 Am. St. 885. (See page 244.) 3. APPOINTMENT OP GENERAL GUARDIAN. (1) Petition for. Authority of court. In order to justify the appointment of a guardian of an alleged incompetent person, under the provisions of Sees. 1763 and 1764 Code Civ. Proc, the court must find the person for whom the guardian is appointed mentally incompetent to take care of himself and manage his property. The evidence must show that his mind is so far gone, and so weak and feeble, that he does not realize and comprehend the value and prudent manage- ment of his property, and is not sufficiently normal to care for it in the usual acceptation of that term: Guardianship of Coburn, 11 Gal. App. 604, 105 Pac. 924. An allegation in a petition for the appointment of a guardian of an incompetent person to the effect that he "is unable unassisted to properly manage and take care of his said property and by reason thereof is likely to be deceived and imposed upon by artful and designing persons and is mentally incompetent to manage his said estate; that he is by reason of old age and physical disability and weakness of mind, unable to take care of himself and manage his property," together with findings that he is "unable to properly manage or take care of himself and his property, ' ' are sufficient to justify the appointment of a guardian under the provisions of Sees. 763 and 1764 of the C. C. P. of California : Guardianship of Coburn, 165 Cal. 202, 131 Pac. 352. Probate Sup. 6. 2268 PROBATE LAW AND PRACTICE. On a petition by a stranger that a guardian be appointed of the estate of an insane person incarcerated in the state asylum and suggesting a third person as fit and proper for the office, a brother of the insane contested the petition and suggested himself for guardian if one was to be appointed, the evidence showed that there had been a misappropria- tion of some part of the insane 's property and that it was not likely to be returned if the brother were appointed, the original nominee was appointed in preference to the brother : In re Martenson, — "Wash. — , 137 Pac. 340. Where a petition for the guardianship of an alleged in- competent and the findings contain everything necessary to justify the appointment, it is not material whether section 1767 of the Code of Civil Procedure defining an incompetent person is constitutional: In re Coburn, 165 Cal. 202, 131 Pac. 352. While, in considering the sufficiency of the petition and findings in proceedings for the appointment of a guardian of an incompetent, it is not necessary to rely upon section 1767 of the Code of Civil Procedure, still a decision upon the validity of that section is proper and useful as a means toward ascertaining what, under the law, constitutes incom- petency sufficient to authorize the appointment of a guard- ian : In re Coburn, 165 Cal. 202, 131 Pac. 352. A court may select any proper person to act as a guardian for an incompetent, even a stranger. It need not appoint his wife : In re Coburn, 165 Cal. 202, 131 Pac. 352. In appointing a guardian for an incompetent, a court is not required to give any weight to his preference: In re Coburn, 165 Cal. 202, 131 Pac. 352. Section 1767 of the Code of Civil Procedure, defining mental incompetency, is a valid enactment, and there is no occasion to go beyond its terms to learn what condition will justify the appointment of a guardian: In re Coburn, 165 Cal. 202, 131 Pac. 352. The inability defined in section 1767 of the Code of Civil Procedure means a mental rather than a physical inability. GUARDIANSHIP OF INSANE AND INCOMPETENTS. 2269 and it is immaterial how such inability has been produced. It may have resulted from old age, disease, or any other cause : In re Coburn, 165 Cal. 202, 131 Pac. 352. It is not necessary, in order to warrant the appointment of a guardian of a person mentally incapable of taking care of his property, that he should also be unable to take care of his person : In re Coburn, 165 Cal. 202, 131 Pac. 352. On an application for the appointment of a guardian, the alleged incompetent may himself be called as a witness and examined : In re Coburn, 165 Cal. 202, 131 Pac. 352. In proceedings for the appointment of a guardian for an alleged incompetent, the petitioner may be asked on cross- examination how much money he has spent in the proceed- ings : In re Coburn, 165 Cal. 202, 131 Pac. 352. The constitution does not guarantee the right of trial by jury in proceedings for the appointment of a guardian for an incompetent : In re Coburn, 165 Cal. 202, 131 Pac. 352. An application to reopen a guardianship case for the in- troduction of further evidence is addressed to the discretion of the court : In re Coburn, 165 Cal. 202, 131 Pac. 352. The rule that the findings of a trial court upon disputed issues of fact are not to be overturned on appeal unless they totally lack the support of substantial evidence is applicable to findings in proceeding for the appointment of a guardian for an alleged incompetent : In re Coburn, 165 Cal. 202, 131 Pac. 352. (See page 245.) (2) Notice and personal presence. Service of notice of an application to appoint a guardian for an insane person is sufficient when made upon him and the person having him in charge at an asylum: Donaldson v. Winningham, 62 Wash. 212, 113 Pac. 286. The court has no jurisdiction to appoint a guardian ad litem for an incompetent defendant until he has been brought into court by personal service of summons: State T. District Court, 38 Mont. 166, 99 Pac. 293. 2270 PROBATE LAW AND PRACTICE. The notice to the incompetent required by section 1563 of the Code of Civil Procedure applies only to an original ap- pointment of a guardian thereunder, and has no application to a petition to remove a guardian under section 1801 of the code, which empowers the court to appoint another person in the place of the removed guardian, and provides for no notice to the incompetent person: Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. Where, by the order of the court, the incompetent was present at the hearing, the court was justified in questioning her to ascertain her mental condition, and was justified, if he found her mentally capable of aiding his judgment, to act according to her wishes to have the petitioner appointed as guardian, though presumptively the court acted on its judgment in making such appointment, and did not make it merely on the nomination and request of the incompetent alone: Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. (See page 246.) (3) Validity of notice. (See page 247 ) (4) Notice by publication. (See page 248.) (5) Collateral attack. (See page 248.) (6) Revocation of appointment. The petition is not re- quired to set forth the next of kin, in order that the citation may be served upon them. The statute only contemplates the service of the citation under a petition to revoke letters of guardianship upon the guardian sought to be removed and does not contemplate service thereof upon the next of kin : Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. The averment in the petition to revoke the letters of guardianship and to appoint petitioner as such guardian, as to the friendly relation of the petitioner to the incompe- tent, and also to her deceased husband for many years, is sufficient to set forth the qualification of the petitioner to appear as the friend of the alleged incompetent: Guardian- ship of Tilton, 15 Cal. App. 244, 114 Pac. 594. GUARDIANSHIP OP INSANE AND INCOMPETENTS. 2271 In proceedings to revoke letters of guardianship, the peti- tion is not subjected to the tests given to complaints in actions at law; but the petition is sufficient, where its state- ments fully inform the court as to why it should interfere for the protection of the incompetent, and authorized the court to inquire, from its averments, whether the guardian had abused her trust, or was guilty of continued failure to perform her duties, or had an interest adverse to the faithful performance of her duties, or was unsuitable to act, or had mismanaged or wasted the estate: Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. Where the findings substantially support the petition, and are amply sufficient fully to support the order complained of removing the original guardian and appointing the peti- tioner as guardian, and where the evidence is not returned upon appeal, it must be presumed that the evidence was sufficient to support the findings and justify the order: Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. A finding as to one specific act of neglect of duty of the guardian beyond the allegations of the complaint may be disregarded, and can not be said to make the findings broader than the allegations of the petition in any objec- tionable sense, where all the other findings are within its averments, and sufficient: Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. (See page 248.) 4. GUARDIAN AD LITEM. An incompetent whether plaintiff or defendant must ap- pear either by his general guardian, or, in case he has none or the guardian fails or refuses to appear, by a guardian ad litem appointed by the court upon the application of a friend or relative or by one of the parties to the action. In all cases where the incompetent is plaintiff the applica- tion should be by a relative or friend: State v. District Court, 38 Mont. 166, 99 Pac. 294. (See page 249.) 5. SUPPORT, MAINTENANCE AND CUSTODY. (See page 249.) 2272 PROBATE LAW AND PEACTICB. 6. POWERS, DUTIES, AND LIABILITIES OF GUARDIANS. (1) In general. It is not within the discretion of the guardian of an insane person to ratify and affirm the valid- ity of a mortgage given by his ward while insane, but he is bound at his peril to disaffirm and avoid it: Bowman v. Wade, 54 Or. 347, 103 Pac. 76. A guardian or other trustee has no moral or legal right to mingle trust funds with his own private property, or to profit by the use of the funds belonging to the cestui que trust, and any trustee who attempts to do so should be sum- marily removed : In re Allard, — Mont. — , 141 Pac. 665. A guardian is an ofiSeer of the court and subject to its directions: In re Allard, — Mont. — , 141 Pac. 663. A guardian must account for all accumulations from the use of the ward's funds and under no circumstances will he be permitted to profit from their use: In re Allard, — Mont. — , 141 Pac. 663. (See page 249.) (2) As to attorneys and their fees. An attorney employed by a guardian ad litem of a minor, to prosecute an action pending in the superior court on behalf of the minor, and whose fee for his services had never been fixed by the court having jurisdiction of the action, can not maintain a writ of review to annul the order of another department of the superior court, made in the guardianship proceedings of the estate of such minor, fixing his fee for such services: Lund V. Superior Court, 159 Cal. 439, 114 Pac. 569. Employment of special counsel by a guardian to defend him in the matter of proceedings for his removal will not be allowed when his general counsel is fully able to handle the matter: In re Bayer, — Wash. — , 141 Pac. 683. (See page 250.) (3) Conduct of ward's business. The rule that a guard- ian making a loan of his ward's funds must exercise due care will be applied much more strictly against a guardian who makes a loan on his own responsibility than where he GUARDIANSHIP OF INSANE AND INCOMPETENTS. 2273 makes a loan at the direction of the court: In re Allard, — Mont. — , 141 Pac. 663. (See page 250.) (4) Actions by guardian. (See page 250.) (5) What is no defense to action. (See page 250.) 7. "CONSERVATORS" IN COLORADO. (1) Appointment. Notice. Jury. (See page 255.) (2) Duties. Investment of funds. (See page 255.) (3) Exceptions to report. Compensation. Removal. Discharge. (See page 255.) 8. REPORT, ACCOUNT AND SETTLEMENT OP GUARDIAN. (See page 253.) 9. CONTRACTS AND. RIGHTS OF INSANE PERSONS. Though a party be entitled to jury trial, the court in refusing it is not prejudicial, where the sole question in- volved is whether the guardian of an imbecile ward may make a binding contract to sell his real estate without the order of the probate court : Nichols v. Bryden, 86 Kan. 941, 122 Pac. 1119. (See page 254.) 10. ADJUDICATION OF INSANITY AND ITS EFFECT. (1) In general. (See page 255.) (2) Presumption and evidence. (See page 255.) 11. RESTORATION TO CAPACITY. TERMINATION OF GUARDIANSHIP. The appointment and qualification of a guardian give the court general jurisdiction over the ward, which continues in a case of insanity until the ward recovers his reason, when the right to manage the estate by the court or guard- ian ceases and the statute of the state of Washington re- quires that the court shall conduct such inquiry as it thinks 2274 PROBATE LAW AND PRACTICE. proper to establish the facts: Jorgenson v. Winter, 69 Wash. 573, 125 Pac. 959. The court having jurisdiction of an insane person may accept the resignation of a guardian or discharge him with- out notice to the ward : Jorgenson v. Winter, 69 Wash. 573, 125 Pac. 959. The court having found that the ward was sane and com- petent, she was entitled to the immediate full control of both her person and estate, under section 1671, Rem. & Bal. Code, and the lower court though determining a matter usually heard on the probate side of the court, was still sit- ting as a superior court of general jurisdiction, with ample power to make and enforce any decree or judgment proper in the premises. For this reason, following the plain man- date of the statute it is better to terminate the guardianship proceeding when the ward is found fully competent to care for and manage her person and estate, making proper pro- vision for the payment of debts or matters involving the striking of a balance between the guardian and ward: In re Bayer, — Wash. — , 141 Pac. 684. (See page 256.) 12. PROCEEDINGS AGAINST INSANE PERSONS. (1) In general. (See page 257.) (2) Judgment. Execution. Limitation of actions, (See page 258.) 13. APPEAL AND REVIEW. An appeal may be taken from a decision of the probate court adjudging that a person is of feeble mind and incapa- ble of managing his affairs and appointing a guardian for his person or estate : Old 's Estate v. Appling, 89 Kan. 340, 131 Pac. 569. In a proceeding by a son to have a guardian appointed for his father, findings of fact are as essential to precede and support the judgment rendered by the court on the particular issue tried by him as is a verdict in a case tried by a jury : In re Manning, 38 Utah 281, 112 Pac. 169. GUARDIANSHIP OF INSANE AND INCOMPETENTS. 2275 Upon a petition to revoke letters of guardianship of an iacompetent person, and to appoint petitioner as guardian, where the order for the citation to issue is in the record, but not the citation itself, though the record recites that citation was issued pursuant to the order, and the guardian came in and answered fully, and had no difficulty in answering because of any insufficient statement in the citation, and as it had served its purpose, she has no cause to complain upon appeal that the citation had no sufficient statement of the nature of the proceeding to enable her to answer the peti- tion : Guardianship of Tilton, 15 Cal. App. 244, 114 Pac. 594. The power of one appointed guardian of the person and estate of an incompetent person is stayed pending an appeal from the order of appointment, by the filing of the under- taking on appeal provided for by section 941 of the Code of Civil Procedure. If the guardian, notwithstanding such appeal, threatens to take possession of the property of the incompetent and to act as his guardian pending the appeal, a writ of supersedeas will be issued against him : Coburn v. Hynes, 161 Cal. 685, 120 Pac. 26. Such a construction of the effect of section 941 of the Code of Civil Procedure, in staying the functions of the guardian pending appeal, is not opposed to sound public policy: Co- burn V. Hynes, 161 Cal. 685, 120 Pac. 26. (See page 259.) CHAPTER VIII. SPENDTHRIFTS. IN GENERAIj. (See page 267.) 2276 PROBATE LAW AND PRACTICE. CHAPTER IX. COMMITMENT AND DISCHARGE OF INSANE PERSONS. § 214a. Arrest, hearing and commitment of inebriates and drug habitues 1. Examination and commitment. (1) Jurisdiction. (2) Constitutionality of statute. (3) Notice and opportunity to be heard. (4) Adjudication of insanity. 2. Collateral attack. 3. Support, maintenance and custody. (1) Liability of estate. - (2) Suit by directors of asylum. (3) Unauthorized order as to custody. 4. Contracts and rights of insane persons. (1) Contracts of conveyance. Deed. Mortgage, 5. Restoration to capacity. Discharge. (1) Distinction. (2) Purpose of statute. (3) Power to discharge. Habeas corpus. (4) Power to discharge "patient." (5) Power to discharge. ■ Effect of discharge. (6) Conclusiveness of discharge. §214a. Arrest, hearing and commitment of inebriates and drug habitues. Whenever it appears by affidavit to the satisfaction of a magistrate of a county, or city and county, that any person is so far addicted to the intemperate use of narcotics as to have lost the power of self-control, or is subject to dispsomania or inebriety, he must issue and de- liver to some peace officer for service a warrant directing that such person be arrested and taken before a judge of the superior court for hearing and examination on such charge. Such officer must thereupon arrest and detain such person until a hearing and examination can be had. At the time of the arrest a copy of said affidavit and warrant of arrest must be personally delivered to said person. Such affidavit and warrant of arrest must be substantially in the COMMITMENT AND DISCHARGE OP INSANE PERSONS. L22I7 form provided by Section 2168 of the Political Code for th,e arrest of a person charged with insanity. lie must be taken before a judge of the superior court, to whom said affidavit and warrant of arrest must be delivered to be iSled with the clerk. The judge must then inform him of the charge against him, and inform him of his rights to make a defense to such charge and produce any witnesses in relation thereto. The judge must by order fix such time and place for the hearing and examination in open court as will give a rea- sonable opportunity for the production and examination of witnesses. Such order must be entered in the minutes of the court by the clerk and a certified copy of same served on such person. The judge may also order that notice of the arrest of such person and the hearing of the charge be served on such relatives of said person known to be resid- ing in the county, as the court may deem necessary or proper. The hearing and examination shall, be had in com- pliance with the provisions of Sections 2169 and 2170 of the Political Code. The judge, after such hearing and exami- nation, if he believes the person is so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control, or is subject to dipsomania or in- ebriety, must make an order that he be committed in a hos- pital for the care and treatment of the insane, designated in such order, and the order must be accompanied by a writ- ten statement of the judge as to the financial condition of the patient, and of the person legally liable for his main- tenance, as far as can be ascertained; provided, that before a person shall be committed to a state hospital, satisfactory evidence shall be submitted to the trial judge shovsdng that the person to be committed is not of bad repute or bad character, apart from his or her habit for which the com- mitment is made, and that there is reasonable ground for believing that the person, if committed, will be permanently benefited by treatment. Such order and statement shall be in substantially the form provided by Section 2171 of the Political Code for the commitment of insane, persons. The court shall commit such person for a definite period, not to exceed two years; but provided that he may be paroled 2278 PROBATE LAW AND PEACTICB. by the medical superintendent under the same rules and con- dition that the insane are paroled; and provided further that the state commission in lunacy shall be given the same power to discharge any person committed under this act as contained in Section 2189 of the Political Code, upon the recommendation of the hospital superintendent, when sat- isfied that such person will not receive substantial benefit from further hospital treatment. Such person shall be de- livered to the state hospital for the insane to which he has been committed in compliance with the provisions of Sec- tion 2172 of the Political Code, providing for the commit- ment and deliverance of an insane person. — Kerr's Cyc. Pol. Code (Kerr's Cum. Supp., p. 290), § 2185c. COMMITMENT AND DISCHARGE OF INSANE PERSONS. 1. EXAMINATION AND COMMITMENT. (See page 286.) (1) Jurisdiction. (See page 286.) (2) Constitutionality of statute. (See page 286.)' (3) Notice and opportunity to be heard. (See page 286.) (4) Adjudication of insanity. (See page 287.) 2. COLLATERAL ATTACK. (See page 287.) 3. SUPPORT, MAINTENANCE AND CUSTODY. (See page 287.) (1) Liability of estate. (See page 287.) (2) Suit by directors of asylum. (See page 288.) (3) Unauthorized order as to custody. (See page 288.) 4. CONTRACTS AND RIGHTS OF INSANE PERSONS. (See page 288.) (1) Contracts of conveyance. Deed. Mortgage. (See page 288.) COMMITMENT AND DISCHARGE OF INSANE PERSONS. 2279 5. RESTORATION TO CAPACITY. DISCHARGE. (See page 289.) (1) Distinction. (See page 289.) (2) Puirpose of statute. (See page 289.) (3) Power to discharge. Habeas corpus. (See page 289.) (4) Power to discharge "patient." (See page 289.) (5) Power to discharge. Effect of discharge. (See page 291.) (6) Conclusiveness of discharge. (See page 291.) PART III. JURISDICTION OF COURTS. CHAPTER I. JURISDICTION OP COURTS. 1. In general. 2. Is statutory and limited. 3. Probate courts as courts of record. 4. Jurisdictional facts. 5. Construction of statute. 6. Invoking, effect of, and loss of. 7. Exercise of jurisdiction. Effect of assuming and refusing to exercise. Prohibition. 8. Original and concurrent jurisdiction. ' 9. Of particular courts. (1) District courts of Arizona. (2) District courts of Kansas. (3) District courts of Montana. (4) Superior courts of Washington. (5) Superior courts of California. (6) County courts of Colorado. (7) County courts of South Dakota. (8) District judges in Alaska. (9) Circuit courts of Oregon. (10) District courts of Oklahoma. 10. Exclusive and conflicting jurisdiction. (1) Exclusive jurisdiction. (2) County courts of Oregon. (3) Conflicting jurisdiction. 11. Exists in what cases. 12. In particular matters. 13. To set aside its own decrees. 14. No jurisdiction when. (1) In general. (2) In county in which estate has not been "devised," (3) Over proceeds of life insurance policy. (4) To foreclose mortgage. (2281) 2282 PROBATE LAW AND PRACTICE. (5) To order property to escheat when. (6) Over timber-culture claimant's claim. (7) To appropriate share of heir or devisee to payment of his debts. (8) Where deceased was a nonresident. (9) Of body of deceased. (10) To administer a living person's estate. (11) To adjust disputed rights generally. (12) To try title. (13) To enforce a trust. (14) In what matters of guardianship. 15. Collateral attack. 16. Jurisdiction in equity. (1) Exists when. (2) Does not exist when. (3) When same court has jurisdiction In equity and in matters of probate. (4) Concurrent iurisdiction. 1. IN GENERAL. (See page 295.)' 2. IS STATUTORY AND LIMITED. Jurisdiction in probate matters is entirely statutory and there is no inherent right to a jury trial : Stevens v. Myers, 62 Or. 399, 126 Pae. 30. (See page 296.) 3. PROBATE COURTS AS COURTS OF RECORD. (See page 296.) 4. JURISDICTIONAL FACTS. The question of the jurisdiction of the county court over any particular estate must first be raised in the county court and determined there, and if not so raised and determined and an appeal therefrom taken, it can not thereafter ordi- narily be raised in the district court, or elsewhere than in the county court, unless the defect of jurisdiction appears upon the face of the pleadings filed in the county court, transmitted to the district court, affirmatively show a lack of jurisdiction. The question of residence is a question of fact, which can be determined only by evidence, and which, in the absence of a showing by the record, must be presumed to have been ascertained and determined by the county JURISDICTION OF COURTS. 2283 court in favor of such jurisdictional facts: Miller v. "Wes- ton, — Colo. — , 138 Pac. 427. The jurisdiction of the county court in probate matters, depending upon the residence of the testator or intestate, is one that may be waived by the heirs of intestate, or the heirs and beneficiaries named in the will of testate estates: Miller v. Weston, — Colo. — , 138 Pac. 428. Service of citation and notice of application for an order of sale by an administrator is jurisdictional and unless proved by the proper returns on file in the county court that court had no jurisdiction to order the sale : Browne v. Coleman, 62 Or. 454, 125 Pac. 280. (See page 297.) 5. CONSTRUCTION OP STATUTE. (See page 298.) 6. INVOKING, EFFECT OF, AND LOSS OP. (See page 299.) 7. EXERCISE OP JURISDICTION. EFFECT OP AS- SUMING AND REFUSING TO EXERCISE. PROHIBITION. The superior court of California has no jurisdiction to vacate a claim allowed and settled, which has become final by the lapse of time, and prohibition will lie to prevent the vacating thereof on motion of the administrator of the es- tate: Kowalsky v. Superior Court, 13 Cal. App. 218, 109 Pac. 158. (See page 299.) 8. ORIGINAL AND CONCURRENT JURISDICTION. The district court has original jurisdiction of the subject matter of trusts and partnerships and to try all the issues alleged to be involved. By the appeal it acquired jurisdic- tion of the persons and by entering upon the trial without objection predicated upon the jurisdiction of the probate court to try the issues, that objection must be regarded as waived: Brown's Estate v. Stair, — Colo. — , 136 Pac. 1005. Under the provisions of Sec. 20, Art. 5, Const, of Idaho, the district court has original jurisdiction in all cases both Probate Sup. 7. 2284 PKOBATE LAW AND PRACTICE. in law and equity, but it does not have original jurisdiction in probate and guardianship matters, as the original juris- diction in such matters is given to the probate court under the provisions of section 21 of said article 5 of the constitu- tion : Idaho Trust Co. v. Miller, 16 Ida. 308, 102 Pae. 360. (See page 300.) 9. OF PARTICULAR COURTS. (1) District courts of Arizona. Article 6, section 6 of the constitution of Arizona, which confers upon the superior court original jurisdiction in all matters of probate, did not affect the existing rules of procedure in probate matters, but the superior court in so far as it exercises jurisdiction in matters of estates of deceased persons is a court in pro- bate: Garver v. Thuner, — Ariz. — , 135 Pac. 726. (See page 301.) (2) District courts of Kansas. (See page 301.) (3) District courts of Montana. The jurisdiction of a district court in Montana when sitting in probate is statu- tory and its proceedings are regulated by statute and are in rem : State v. District Court, 41 Mont. 369, 109 Pac. 441. (See page 301.) (4) Superior courts of Washington. (See page 301.) (5) Superior courts of California. The superior court sitting in probate can not go into an accounting of a co- partnership, nor determine the ownership of shares of stock which as yet are no part of the estate, and in respect of which the administrator refuses to take steps necessary to determine their ownership. The ecjuity court alone can and will afford relief where the powers of the probate court are inadequate to do justice: Raish v. Warren, 18 Cal. App. 655, 124 Pac. 95. The superior court sitting in probate has no jurisdiction to set apart property as a homestead where the same is alleged in the petition therefor to be the separate property JURISDICTION OF COURTS. 2285 of the petitioner: Estate of Klumpke, 47 Cal. Dec. 390, — Pac. — (March, 19U). In the state of California the same presumption exists in favor of the acts of the superior court done in the exercise of its probate jurisdiction, as exists in favor of its acts done in ordinary litigation between parties: Johnson v. Canty, 162 Cal. 391, 123 Pac. 263. (See page 301.) (6) County courts of Colorado. The probate court has no jurisdiction in the state of Colorado to set aside its de- cree of distribution after the expiration of the term at which the decree was entered: Connolly v. Probate Court, — Ida. — , 136 Pac. — . A county court of Colorado sitting in probate has no jurisdiction to determine the validity of an ante-nuptial settlement made between decedent and his widow: Wilson V. Wilson, 55 Colo. 70, 132 Pac. 68. (See page 304.) (7) County courts of South Dakota. Under the consti- tution and statutes of the state of South Dakota an original or independent action or proceeding can not be brought in the county court to obtain a construction of the terms of a will, but there is given to such court the equitable power in the course of the administration of an estate, to construe a will so far as such construction may be necessary in order to administer such estate under said will and distribute same to the parties entitled thereto. The county court construes every will when it decrees a distribution thereunder, or when it orders the payment of a debt or legacy from any particular fund, and such court has jurisdiction to construe a will for the purpose of determining whether certain land was to be distributed to testatrix's children or to be set over to the petitioner at a certain price named in the vdll and the proceeds distributed among such children : In re Sjur- son's Estate, 29 S. Dak. 572. (8) District judges in Alaska. The Alaska Code of Civil Procedure, Sec. 763, provides that the commissioners ap- pointed in pursuance of that act and other laws of the United States have jurisdiction within their respective pre- 2286 PROBATE LAW AND PRACTICE. cincts, subject to the supervision of the district judge, in all testamentary and probate matters. Held under this sec- tion that such supervision by the district judges is appellate only and that the district court has no original jurisdiction in probate matters : Decker v. Decker, 3 Alas. 121. (9) Circuit courts of Oregon. The circuit court of Ore- gon has jurisdiction to admeasure dower: Browne v. Cole- man, 62 Or. 454, 125 Pac. 281. (10) District courts of Oklahoma. The district courts of the state of Oklahoma have jurisdiction in actions in ejectment. Prior to the admission of the state the will of a deceased Indian was duly probated and executed by the executor in the Indian Territory and all the debts of the estate paid. There was but one beneficiary under the will. Held that a district court of the state has jurisdiction of an action in ejectment to recover possession of or of a suit to remove claim from title to the allotted lands of deceased brought by the heirs at law of the deceased against the ben- eficiary under the will: Austin v. Chambers, 33 Okla. 40, 124 Pac. 310. 10. EXCLUSIVE AND CONFLICTING JURISDICTION. (1) Exclusive jurisdiction. Inasmuch as exclusive orig- inal jurisdiction was given to the superior courts in the state of Washington over the subject of probate proceedings such jurisdiction carries with it the presumption of the integrity of the judgments of such courts, the same as is carried by the judgments of courts of general jurisdiction: Magee v. Big Bend Land Co., 51 Wash. 406, 99 Pac. 18. (See page 304.) (2) County courts of Oregon. In the state of Oregon the county court has exclusive jurisdiction in the probate of wills: Stevens v. Myers, 62 Or. 399, 126 Pac. 33. The jurisdiction of the probate courts in Oregon to ad- minister upon the estates of decedents is primary and ex- clusive : State v. First Nat. Bank, 61 Or. 551, 123 Pac. 714. JURISDICTION OF COURTS. 2287 Under the constitution of the state of Oregon the county court has exclusive jurisdiction in the first instance pertain- ing to a court of probate ; that is, to take proof of wills and to grant and revoke letters testamentary, of administration and of guardianship and whenever a will is probated in such court in common form it may thereafter be contested in that court by a direct proceeding brought within one year after the probating, but the decree of the county court is immune from collateral attack: Mansfield v. Hill, 56 Or. 400, 107 Pae. 474. (See page 305.) (3) Conflicting jurisdiction. Under the constitution of California of 1849, probate jurisdiction was vested in the county courts, and general equity jurisdiction in the district courts, but under the present constitution both branches of jurisdiction, while remaining distinct, are administered in the superior courts. With a constitution conferring ex- clusive probate jurisdiction upon one court, it is not compe- tent for the legislature to empower another court, clothed only with jurisdiction in general equity, to set aside wills obtained by fraud or undue influence, and to declare void any paper purporting to be a last will, and to set aside the probate judgments of the court constitutionally vested with probate jurisdiction, for fraud, concealment, or perjury. The statute of 1862 (Stats. 1862, p. 27), giving the district court power to set aside a will or a probate decree on the ground of fraud and the like, was unconstitutional, for the constitution gave county courts exclusive probate jurisdic- tion: Stead V. Curtis, 205 Fed. 439. (See page 305.) 11. EXISTS IN WHAT CASES. (See page 306.) 12. IN PARTICULAE MATTERS. Where after an administrator of the estate of an intestate had been appointed one of the heirs made charges in the administration proceedings against the other heirs that they had concealed, embezzled, and conveyed away property be- longing to the estate, the charges were dismissed for want of jurisdiction: In re Syerley's Estate, 87 Kan. 307, 124 Pac. 406. 2288 PROBATE LAW AND PRACTICE. The statutes of Kansas conferring jurisdiction on probate courts to allow and admit to record authenticated copies of foreign wills executed and proved according to the laws of any state or territory of the United States or of any country other than the United States and territories thereof, and giving to such copies when so allowed and recorded, the same efEect as if the original will had been proved in Kansas, were not intended to deny such courts jurisdiction to pro- bate an original will executed in a foreign state or county which disposes of property situated in Kansas: Thompson V. Pamell, 81 Kan. 119, 105 Pae. 502. (See page 308.) 13. TO SET ASIDE ITS OWN DECREES. (See page 308.) 14. NO JURISDICTION WHEN. (1) In general. A probate court has no jurisdiction or authority in the administration of an estate of a decedent to order or confirm the sale of real estate which belongs to some one else, and the title to which is vested in another, and which property did not in fact or law belong to the estate being administered : Douglas v. Douglas, 22 Ida. 336, 125 Pac. 796. (See page 309.) (2) In county in which estate has not been "devised." (See page 310.) (3) Over proceeds of life insurance policy. The pro- ceeds of the two mutual benefit certificates standing in the name of a testator at the date of his death held not to be a part of his estate and consequently were not within the jurisdiction of the probate court, thoLi.- -rrs.;-,., against special administratoi, 466. ;;' ^ against suiyties bi defaulting administrator and deceased adminis- trators or co^eieeutoTs, 446. by executors or administrators, 1043-1068. ' by guardian, 177, 2245. by guardian of insane or incompetent person, 250. by special administrator, 466. dispogiiiibk of estate, after property fraudulently conveyed by tes- tator ia recovered, 1018, .1019. duty of guardian of insane or incompetent person to defend, against his *ard, 2ol. executor or administrator may sue or be sued, 1007. for accounting by surviving partner, 1106. for. waste, conversion or trespass, may be inaintained by executor oi adininistrator, 1007. .,t ^ not maintainable on guardian's bond until amount of indebtedness has been determined, 223. on administration bonds, appeal, 452. on administration bonds, defense, what is, 449. on administration bonds, defense, what is not, 449. on administration bonds, evidence, 450. on administration bonds, in general, 445-452. on administration bonds, judgment, 450. on administration bonds, leave to sue, 447. on. administration bonds, limitation of, 451. on administration bonds, parties, 448. on administration bonds, pleadings, 448. on administration bonds, restriction upon action against sureties, 447. on bond given to secure payment of money, 1283. on bond of one administrator, may be brought by another, 1011, on bonds of executors or administrators, 452. on guardian's bond, 222. on guardian's bond, defense to, 225. on guardian's bond, limitation of, 225. ' suits by public administrator for property of decedents, 1500. to recover property fraudulently disposed of by testator. 1014. to recover property fraudulently disposed of by testator, may be brought' only when, 1015. to set aside confirmation of probate sale, 946. what executors are not parties to, 1012. ACTION TO QUIET TITLE who may testify in, 1842. GENERAL. INDEX. 2§71 -^ C^ieterences are to pages.] ADDITIONAL BOND ','■/. '■ ' ■■'•A~ form of, to be given on sale of real estate, 415. may be required before sale of ward's estate, 184. to be given on sale of real estate, 436. ADDITIONAL SECUEITY (See Bonds) ADEMPTION (SeefRsferences to "Am. Dee." notes; References to "Am. St. Eep." notes) and abatement of legacies, 1599, 2676. of general legacies, advancements or gifts not to be taken as, when, 1566. AOMEASTJEEMBNT OF DOWEK _ , , form of oath of commissioners for, 657. form of order confirming report of commipsionera for, 659, form of order for, 656. form of petition for, 653. , . - : form of return of commissioners for, 658. , , ■ .^ ■. , form tit Varrant to commissioners for, 657. Mr, ]■.: ■ > order for, 656. . , .. ; ADMINISTRATION , /, (See Estates of missing persons; References to "Am. St. Rep." notes; References to notes in "Am. & Eng. Ann. Gas.") granting or refusing of, in general, 365. , , . , in general, 517. , hm';,,' no power to administer on living person's estate, 313. . of community property, in Washington, 1737. petition for continuation of, 1318. , when estate does not. exceed fifteen hundred, dollars in value, 558, 2347. ADMINISTRATION BONDS (See References to "L. R. A." notes) ADMINISTRATION UPON ESTATE OF MINOIf , , „ ,-, (See References to notes in "Am. & Eng. Ann. Cas.") .i ADMINISTRATOR'S DEED - : r.- ■ ■ . (See References to "Am. Dec." notes) ' . .: j ;i ; form of, 863. /. , , ■■■ .:..■<-■ form of, acknowledgment of, 864. ! form of, to one offering ten per cent advance, 865. : 2872 GENERAL INDEX. [References are to pages.] ADMINISTBATOK WITH WILL ANNEXED power in will to sell, passes to, 940. ADMISSIONS of decedents, admissibility of, in suit on claims against estates, 740. ADOPTED CHILDBEN (See Adoption; Eeferences to "Am. St. Eep. " notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas."; Eeferences to. notes in Kerr's Cal. Cyc. Civ. Code") inheritance by, 48, 2195. omitted from wills, rights of, 1579. right of, to inherit, 20. ADOPTION (See Adopted children; Eeferences to "Am. St. Eep. " notes; Eefer- ences to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Cas. ' ' ; Eeferences to notes in ' ' Kerr 's Cal. Cye. Civ. Code ' ' ; Sections of the Civil Code of California, arranged according to subject-matter) attacking order of, 18, 2194. consent not necessary to, in case of abandoned children, 3, 2188. consent of child, 4. consent to, 2, 12, 2189. effect of, 9. effect of, divorce proceedings, 17. effect of, on parents, 10, 2192. essentials of, 11. evidence of, 17, 2192. examination of parties, 13, 2190. form of agreement to adopt, 7, form of consent to, 6. form of order of, 8. form of petition for leave to adopt a minor, 5. inheritance, 2195. in another state, 19. in Hawaii, 21. judge's order of, 7. nature of proceeding, 11, 2189. of abandoned child, 3, 14. of child, 1. of deserted child, 3. of illegitimate child, 10, 16, 17, 2191. of Indian children, 15. of orphans and abandoned children, 3, 2188. order of, 14. proceedings on, 5. GENERAL INDEX. 2873 IReferences are to pages.] ADOPTION— fCowttnuedJ specific perf ormance of contract of, 21. welfare of the child, 2190. what will not invalidate proceedings, 18, 2195. who may adopt, 2, 12. ABVANCEMENTS (See References to "Am. Dec." notes; Eeferences to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Cas.") are not to be taken as ademptions of general legacies, when, 1566. are part of distributive share, 31. by executor or administrator, effect of making, 1089, 2493. made during lifetime of testator, effect of, 1532. made to heirs, considering questions of, on partition in connection with distribution, 1391. payment of mortgage constitutes advancement when, 1260. to be considered on distribution, if heir dies before decedent, 33. value of, how determined, 32. what are, 32, 2677. when too much or not enough, 31. ADVERSE CLAIM action by executor or administrator to determine, 1059. ADVICE and instructions to executors and administrators, 1096. AFTER-ACQUIRED PROPERTY may pass by will, 1602. AFTER-BORN CHILD (See Posthumous children; References to "L. R. A." notes; Refer- ences to notes in "Kerr's Cal. Cyc. Civ. Code") AFFIDAVIT affidavit by partnership to creditor's claim, 677. form of, and order remitting clerk's fees, 125. form of, for removal of executor or administrator, 482. form of, mailing notice to heirs, 1624. form of, of insanity, 269. ^^ form of, of no knowledge of subsequent will, 323, form of, of posting notice, 1809. form of, of posting notice of administrator's sale of perishable property, 800. form of, of posting of notice of hearing application for letters of administration, by deputy county clerk, 358, 2874: GENERAL INDEX. IReferences are to pages. 1 AFFTDAYIT— (Continued) form of, of posting of notice of hearing of application for letters of administration, by any person over twenty-one years of age, 358. form of, of posting notice of hearing of petition for family allow- ance, 554. form of, of posting notice of hearing of petition for final distribu- tion, 1313. form of, of posting of notice of petition for assignment of estate for use and support of family, 561. form of, of posting notice of settlement of account, 1195. form of, of posting notice of settlement of final account and, dis- tribution, 1185. form of, of posting notice of time set for hearing probate of will, 1622. form of, of posting notices of sale of personal property, 810. form of, of posting notices of sale of real estate, 851. form of, of publication, 1458. form of, of publication of notice of sale of personal property, 810. form of, of publication of notice of time and place appointed for probate of will, 1623. form of, of publication of notice of time and place of sale of real estate, 852. form of, to account of representative, 1168. form of, to collect banls deposit of deceased depositor, 516. object of requiring, to accompany inventory and appraisement, 529. of corporation to creditor's claim, 676. of posting notice of time of hearing of application for decree estab- lishing notice to creditors, 672. of publication of notice to creditors, 671. of publication of order to show cause why decedent's real estate should not be mortgaged or leased, 992. that creditor had no notice, 675. to claim against estate, 702. to creditor's claim, 674. to creditor 's claim, by one other than the claimant, 675. AGENT (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) competency of, as a witness as to a transaction with a deceased per- son, 1848. to sell under power of sale in wiU, compensation of 937. GENERAL; INbEX. 2875 [References are to pages.] AGENTS FOE ABSENT, INTEBESTED PAETIE8 account by agent of absentee, 1409. agent to give bond, and his compensation, 1407. court may appoint agent to take possession for absentees, 1407. form of bond of agent appointed for non-resident distributee, 1412. form of certificate entitling claimant to money paid into treasury by agent, 1420. form of order appointing agent to take possession for non-resident distributee, 1411. form of order confirming sale of property by agent, 1 419. form of order directing sale,' by agent, of property of non-resident distributee, 1418. form of order of account of agent for non-resident distributee, 1415. form of order of county treasurer's receipt to agent for non-resi- dent distributee, 1414. form of order of sale of personal property in possession of agent for non-resident distributee, 1414. form of petition, by agent of non-resident distributee, for sale of unclaimed personal property, 1413. form of petition claiming money paid into treasury by agent, 1420. form of report of agent for non-resident distributee, 1417. form of verification of account of agent for non-resident distributee, 1417. grant of certificate to claimant, 1410. liability of agent of absentee on his bond, 1409. sale of property by agent of absentee, and disposition of purchase- money, 1409. unclaimed estate, how disposed of, 1408. AGEEEMENT as to compensation of executor or administrator, validity of, 1135. form of, to adopt children, 7. AGEEEMENT TO ADMINISTER ' (See Eeferences to "L. E. A." notes) AGEEEMENT TO DEVISE (See Eeferences to notes in "Am. & Eng. Ann. Cas. ") AGEEEMENT TO EENOUNCE EXECUTORSHIP (See Eeferences to "Am. Eep. " notes) AGEEEMENT TO EELINQUISH COMPENSATION, BY EXECUTOE OE ADMINISTEATOE (See Eeferences to "Am. Eep." notes) Probate Sup. 44. 2876 GENERAL INDEX. [Beferences are to pages.] ALIEN (See Eefererces to "Am. St. Eep." notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Gas."; Eefer- ences to notes in "Kerr's Cal. Cye. Civ. Code") escheat of property of, 70. inheritance by, 35, 52, 2206. must claim within five years, 36. right of non-resident, to inherit, 57. ALIENATION mortgage of homestead of insane person, 646. of homestead, 613, 2376. of homestead of insane person, 646. of homestead, or power to encumber, 637. sale of homestead of insane person, 646. suspending power of, 1803, 2666. ALIENATION OF HOMESTEADS OP INSANE PEESONS. (See Eeferences to notes in Henning's General Laws) ALLEGATIONS form of, of cause for removal of administrator, 487. ALLOWANCE (See Family allowance; Suppokt or family) ALTEEATION of will, effect of, 1640. AMENDMENT of claim against estate, 709, 723. "AM. EEP." NOTES (See Eeferences to "Am. Eep." notes) ANCILLABY ADMINISTEATOB (See Eeferences to "Am. Dee." notes; Eeferences to notes in "Am. & Eng. Ann. Cas.") action by, 1045, 2479, 2480. authority of, 1042, 2479. collection of assets of decedent by, 525. ANCILLAEY LETTBES (See Eeferences to "L. B. A." notes) GENEEAL INDEX. 2877 [References are to pages.] ANNUAL ACCOUNT (See Accounting and settlement; Accounts) form of, guardian's, 129. verification of guardian's, 131. ANNUITY (See References to notes in "Kerr's Cal. Cyo. Civ. Code") what is not an, 1601. ANSWEB form of,- to complaint on claim of heirship, 1305, form of, to contest of probate of will, 1655. sufScieut denial of presentation of claim, 741, APPEAL (See Accounting and settlement; Collateral-inheritance tax; Pinal distribution; Partial distribution; Public adminis- trator; References to "L. R. A." notes; Sections of the Code of Civil Procedure of California, arranged according to subject- matter; "Wills, contest of, after probate; Wills, contest of probate of; Wills, nuncupative, probate of) affirmance of judgment on, in action by next friend, 88, affirmance on, reversal, 229, 2261, 2525. additional inventory, 2850. alternative method, 2858. appealable orders, appointment of administrator, 2850, appealable orders, attorneys' fees, 1781, 2500. appealable orders, contest of probate of wills, 1782, appealable orders, distribution, 1782, 2849. appealable orders, family allowance, 1781, appealable orders, guardians, 1782. appealable orders, in general, 1780, 2848, 2850. appealable orders, on accounting and settlement, 1238, appealable orders, order authorizing mortgage, 1782. appealable orders, order directing conveyance, 1782. appealable orders, payment of claims, 1780. appealable orders, revocation of letters of administration, 406. appealable- orders, sale of real estate, 1782, 2849. appealable orders, settlement of accounts, 1781, 2525, bill of exceptions, necessity of, 1791, 2856. by executor, administrator, or guardian, 1774. certiorari, appealable order can not be reviewed on, 1793, 2857, consideration on, in general, 1791, 2856. consideration on, presumptions, 1792, 2857. consideration on, review of discretion, 1792, 2856. consolidation on, of proceedings for appointment of administrator, 394. 2878 GENERAL INDEX. [References are to pages.] APPEAL — (Continued) dismissal of, 1790/ 2855. dismissal of, when proper, 229, 2855. effect of appeal, 2858. effective notice of, when not fatal, 394. executor or administrator, right of, to appeal, 1779. findings, consideration of on, 228, 2525. from decree determining heirship, 1326. from decree establishing notice to creditors, 787. from decree settling account of trustee, 1429. from judgmen±' in habeas corpus proceedings for custody of child, 98. from order allowing claims against estate, 786-788. from order appointing administrator, 393. -j from order appointing guardian for insane or other incompetent, 259. from order appointing guardian for insane or other incomp6tent, dis-' inissal of, 260. from order appointing special administrator, 466. ' ' from order denying application of widow to set apart property less in value than fifteen hundrfed dollars, effect of death pending, 588. from order denying letters of adminifetration, 394. from order denying new trial, 1779, 2847. from order fixing amount of attorney's fees for executor or adminis- trator, 1157. from order fixing amount of compensation of attorney for representa- tive, 1112. from order fixing compensation of executor or administrator, 1142. from order granting or denying application to set apart probate homestead, 644. from order granting or denying application to set apart property less in value than fifteen hundred dollars, 586. from order granting or denying family allowance, 582, 583. from order made upon motion for new trial in probate matters, 393. from order relative to letters of administration with the will an- nexed, 340. from order relative to letters testamentary, 340. from order removing or suspending administrator, 499. from orders concerning payment of debts, 1271. from orders directing or refusing to direct specific performance of a contract to convey decedent's real estate, 968. from orders made on accounting and settlement, 1237-1245. from orders respecting probate sales, 951-954. in action against executor or administrator, 1087. in action on administration bond, 452. in matters of guardianship, 227-229, 2260-2261, 2274. in matters of guardianship, appealable orders, 227. GEMEEAL INDEX. 2870 [References are to pagfes.] AFP-EAIj— (Continued) in matters of guardianship, effect of, as stay, 228, 2261. in matters of guardianship, in general, 227, 2260, 2274. ''■ ■ in matters of guardianship, remedy of party aggrifeved, 227.'' ■ in probate proceedings, to be given preference, 1775. ■ ■' is remedy of one aggrieved by order authorizing mortgage'of dece- dent'^ property, 1000. .., , judgment roll, what constitutes, 1791, 2856. ' <■'■■ jurisdiction of appeal, 1789. law of the case, 1793. '■■ lies from order granting letters of administration, 394. may be taken when, 1774. must be taken within what time, 1464. new trial and appeal, in general, 1778.' ■ ' new trial and appeal, application of code provisions, 1778. ' ' new trial, appeal-from Order denying, 1779. non-appealable orders, accounts, 1784, 2851. non-appealable orders, discontinuauce of- widow's allowance, 2852. non-appealable ordersi discovery of assets, 2852. non-appealable orders, distribution, 1785. non-appealable orders, direction or command, 1784, 2851. non-appealable orders, in general, 1783, 2850. ' non-appealaWe orders, finding executrix guilty of contempt, 1784. non-appealable orders, granting motion to ■ vacate allowance of claim, 28^2. non-appealable orders, homesteads, 1785. non-appealable orders, on accounting and settlement, 1238. non-appealable orders, probate of wills, 1786. non-appealable orders, revocation of letters, 1784. non-appealable orders, sales of property, 1785. notice of, 393, 2852. notice of, filing of, and undertaiing; 1787, 2853. notice of, filing of, jurisdiction, 1787. notice of, how to be served in case of death of party, 1787. notice of, jurisdiction, 1786. notice of service, 1786. notice of, sufficiency of, 1786, 2852. poverty, 2854. premature appeal, dismissal of, 1789, 2854. premature appeal, entry of order, what constitutes, 1790. probate sales, appealable orders, 951. probate sales, non-appealable orders, 951. record on, presumption, 229. right of guardian to appeal from order concerning insane or othw incompetent, 260. right of, how limited, 1776. 2880 GENERAL INDEX. [References are to pages.} AFPEAli— (Continued) right of, in general, 1776, 2846. right of, non-application of code provisions, 1777. reversal of order of appointment, effect of, 1775. statement on appeal, necessity of, 1791, 2856. statutory notice need not be given upon second hearing after rever- sal, upon appeal, of order to sell, 915. , time for taking, 1780, 2848. to circuit or district court, correction of judgment, 1795. to circuit or district court, execution of judgment, 1796. to circuit or district court, findings, 1795. to circuit or district court, trial de novo, 1794, 2857. undertaking, application of statute, 1788. undertaking, bond by representative not required when, 1788. undertaking, bond by representative is required when, 1788, 2854. undertaking, in case ofScial bond has been given, 1788. undertaking, in general, 1787, 2853. who may appeal, 1779, 2847. what provisions of code apply to probate proceeidings on, 1464. writ of error, le-docketing case on, 1793., APPOINTMENT (See Beferences to "Am. Dec." notes; Beferences to notes in "Am. Sc Eng. Ann. Cas.") , as administrator, competency of applicant, 390. as administrator, disqualification to act, 390. as administrator, who not entitled to, 389. , > . form of, of special administrator to take depositions, 1809. form of order of, of guardian of inconipetent person, 234. form of petition for, of guardian pf incompetent person, 233. form of petition for, of guardian of insane person, 232. of administrator, collateral attack on, 386. of administrator, preference, 374.. of administrator, priority, 374. of administrator, validity of, 385. of another as executor, administrator, or guardian, where one has been removed as such for disobedience, of lawful orders, 1467. of executors and administrators in case of nuncupative will, 1727. of guardian, by court, of alleged insane or incompetent person, after hearing^ 232. of guardian, circumstances for cgnsijieration, 166. of guardian for habitual drunkard, 264.. of guardian for spendthrift, 262. .J,, • of guardian here notwithstanding foreign guardian, 168. of guardian, necessity of petition and notice, 165. of guardian, validity of, 168. GENERAL INDEX. 2881 [Beferences are to pages.] APPOINTMENT— ^Cowtiwed; of guardians, 164. of guardians, jurisdiction of court, 164. of new administrator, vacancy in administration essential to, 490. of non-residents as administrators, 377, 392. of second administrator, though erroneous, is valid until set aside, 403. of special administrator, 453, 461-463. of those not entitled to administration, 375. of trustee for estate of missing person, 1741. right to, as guardian, 164. APPOINTMENT OP ATTORNEY FOE ABSENT HEIRS (See References to notes in f" Kerr's Cal. Cyc. Code Civ. Proc") APPORTIONMENT between widow and children of property set apart for support of family, 557. of estate less in value than fifteen hundred dollars, 585, APPLICATION (See Partial distribution; Petition) for probate homestead, 622. APPRAISEMENT ^See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) necessity of, within one year of time of sale of land at private sale, 847. of interests of decedejnt-in partnership property, 1008. APPRAISER (See COLLATEKAL-INHERITANCE TAX) APPRAISERS OF ESTATE (See Inventort and appraisement) APPRAISERS OF HOMESTEAD form of notice of hearing on report of, 592. form of order setting time for hearing report of, and prescribing notice, value exceeding $5,000, 592. ARBITRATION of claims against estates, 726. ARIZONA (See District court) , 2882 GENERAL INDEX. [References are to pages ] ASSETS OF ESTATE (See Effects of decedents; References to "L. E. A." notes; Refer- ences to notes in "Am. & Eng. Ann. Cas.") chattels under mortgage constitute, 1091. discovery of, by executor or administrator, 1089, 2492. in cases where a partnership existed, 1097. marshaling of, for payment of debts, 1264. ASSIGNEE (See References to "Am. Dec." notes) final distribution to, 1362. ASSIGNMENT (See References to "Am. Dec." notes) of dower by county court, 652. of dower, warrant for, 653. of estate less in value than fifteen hundred dollars, 583. ASSIGNMENT OP DOWER (See References to "Am. St. Rep." notes) ASYLUM (See Commitment and dischakge of insane persons; References to notes in Henning's general laws) orphan, 2188. suit by directors of, to recover debt due from husband of inmate, 288. ATTACHMENT (See References to notes in "Am. & Eng. Ann. Cas.") against foreign executor, 1075. against representative for not obeying citation to account, 1164. enforcement of claims against estate by, 762. form of order for, for neglecting to return account of sales, 882. form of order of, to compel surviving partner to render an account, 1011. form of order to show cause why, should not issue for failure to return accounts of sales, 882. form of, to compel rendering of account, 1170. to compel attendance of executor or administrator in proceedings for his removal, 489. ATTACKING SALES rights of heirs as to, 1337. GENEEAL INDEX. 2883 [References are to pages.] ATTESTATION OF WILLS (See References to "Am. St. Eep." notes; References to "L. E. A." notes; Wills, execution of) ATTORNEY (See References to notes in "Kerr's Cal. Cyc. Code Civ. Proo.") appointment of, for absent heirs, 1491. appointment of, for heirs, 1327. communications with, as evidence on contest of probate of will, 1675. form of acknowledgment of authority of, to appear in matters of heirship, 1304. form of authority of, to appear in matters of heirship, 1303. form of order appointing, 1466. of minors, etc., form of consent of, to probate of will, 1626. ATTORNEY GENERAL to institute escheat proceedings when, 59. ATTORNEYS' EEES (See Executor or administrator; References to "Am. Dee." notes; •References to "L. R. A." notes) appealable orders, 1781, 2500. of attorney for insane or incompetent person, 250, 2233. BANK liability of representative for failure of, 1122. BANK DEPOSIT (See References to "L. R. A." notes) form of affidavit to collect, of deceased depositor, 516. surviving heirs may collect when, 515. BASIS of commissions to executor or administrator, 1133. BELIEF (See Information ok belief) BENEFICIARY (See References to notes in "Kerr's Cal. Cyc. Civ; Code") form of bond of, to state, for payment of collateral-inheritance tax, 1759. of benefit certificate, takes how, 1601. under will, liability of, for testator's obligations, 1588. BENEFIT CERTIFICATE beneficiaries under, take how, 1601, 2683. 2884_ GENERAL INDEX., [References are to pages.] BEQUEST (See References to notes in "Am. & Eng. Ann.Cas.") of debt against executor, 509. y . .; of residue, effect of, 1560. or devise of all real or all personal property, or both, effect of, 1559, to a class, effect of, 1561. vests when, 1563. BEQUEST TO A CHURCH (See References to notes in "Am. & Eng. Ann. Cas.") BEST INTERESTS OF ESTATE property of decedent may be sold for, 912. sale under power in will for, 936, BILL OP EXCEPTIONS (See Appeal) ;-,.:,.■..- on appeal from order made on accounting and settlement, 1240. BILLS OF PARTICULARS in action upon claim against? estate) 741. BODY OF DECEASED , . , duty and right of burial, and expenses of bur'al, distinction, 312. expenses as to disposition of, a charge against estate, 312. jurisdiction as to _disposition of, 312. not property of his estate, 312. BONA FIDE PURCHASERS . at probate gales, -how affected by adverse possession,, ^928. at probate sales, rights of, 928. c i^.., BOND (See Bond of executok or administrator; References to "Am. Dec." notes; References to "Am. St. Rep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas."; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) action on, for payment of money secured by, 1280. and oath of public administrator, 1498, 1508. by legatee for payment of legacies, 1599. for appearance of alleged insane person, 281. form of, of agent appointed for nonresident distributee, 1412. form of, on distribution before final settlement, 1281J form of, on sale of contract for purchase of land, 876. form of justification of sureties on, on distribution before final settlement, 1282. GENERAL INDEX. 2885 [Relerenoes are to pages.] ' BO'NT)— (Continued) foi:m of order for partial distribution without/ 1282; liability of agent of absentee, on his^ 1409. necessity of giving, on application for partial distribution, 1239. order for payment of money secured by, 1283. payment of legacies upon giving, 1274. purcljaser of, contract for purchase of l^ind to giye, 875. to be given by agent for nonresident distributee, 1407. to be given by trustee of estate of missing person, 1742. to be given on partial distribution prior to final settlement, 1275. BOND OF EXECUTOR OR ADMINISTRATOR action against sureties of defaulting admiiiistrator and dedeased administrator or cO-executor, 446. action on, 452, 2319.- action on administration bond, appeal, 452. action on administration bond, defense tb, what is, 449. action on administration bond, defense to, what is not, 449. action on administration bond, evidence, 450.' action on administraition bond, in cases 6f successive administra- tions, 446, '2319. action on administration \)OTadL, in general, 445-452. action on admiWstra'tion bond, judgment, 450. action on administration bond, leave to sue, 447. action oii administration bond, limitation of, 451, action on administration bond, parties, 448. action on administration bofid, pleadings, 448. ' "action on administration bond, restrietioil uf)on action against sure- ties, 447; -2319.' action on administration bond, what is only made triable', 445. action on administration bond, When maintainable by pdople, 446. action on adrtiiiaistration bond, where; representative is both an ex- ecutor and a trtistee!, 44'5. ' .. _ ' '' . ' - additional bond, when required, 414, 436, 2317. administration bond, effect of failure to give, 435. administration bond, further security, 436, 2317. a;dministr^tion bond, in ^^eiieial, iSi, 2316. ' administration bond, joint and several bond, effect oi, 436. administration bond, may be required when, 435. administration bond, to be given in case of death or disability of original appointee, 470, administration bond, validity of, 435. and oath of public administrator, 1498, 1508. application for further security to be determined at any time, 433. by representative on appeal, when required, 1788. by representative on appeal, when not required, 1788. citation and requirements of judge on deficient, 421. 2886 GENERAL INDEX. [References are to pages.] BOND OF EXECUTOR OE ADMINISTBATOR— ("ContijiijetiJ citation to executor or administrator, to show cause why he should not give further security, 425. conditions of, 416. form and requirements of, 410. form of acknowledgment, by corporation, of execution of, 412. form of additional, to be given on sale of real estate, 415. form of affidavit that, is insufficient, 420. form of bond of special administrator, 458. form of citation to representative when sureties are insufficient, 425. form of examination of surety on, 419. form of, given upon qualifying, 411. form of justification of sureties on, 418. form of justification of sureties on additional, 418. form of order admitting foreign will to probate and for letters, with or without, 1689. form of order admitting .will to probate and for letters testament- ary, with or without," 166Q,.^ 1661. form of order for citation, on petition of surety to be released, 430. form of order for citation to administrator or executor when sure- ties are insufficient, 424. ~ ._ form of order revoking letters on failure to giye further security, 428. " ■ . form of order revoking letters on failure to give new sureties, 433. form of order that further security be given, 426... form of order that surety on, be rel^sed, 432. form of petition for further security in case pf failing sureties, 423. form of petition of surety on, to be released, 430. form of, with corporation as surety, 414. form of, with numerous sureties, 412, further security, may be required when, 423, 426. further security on court's own motion,, 428. justification of sureties on, 417. liability on administration bonds, 434-452, liability on administration bonds, , breach of bond, 440. liability on administration bonds, conclusiveness upon sureties of accounting, distribution,, and judgment, 439. liability on administration bonds, contribution, 443. liability on administration bonds, discharge of, 443. liability on administration bonds, in general, 437, 443. liability on administration bonds, joint liability, 443. liability on administration bonds, liability of sureties for personal debts of executor or administrator,, 441, 2318. liability on administration bonds, reimbursement, 443. liability on administration bonds, release of, 443. liability on administration bonds, subrogation, 443. GENERAL INDEX. 2887 IReferences are to pages.] BOND OF EXECUTOE OE ADMINISTEATOE— rCoJi*in«erDPAEENTS descent to, 50. GEANTEE final distribution to, of heirs, 1361. GEANTS OF ADMINISTEATION (See Eeferences to "Am. Dec." notes; Eeferences to "Am. St. Eep." notes) GUARDIAN AD LITEM (See Eeferences to ' ' Am. St. Rep. ' ' notes) affirmance of judgment, in action brought by next friend, 88. appearance for ward, 87. appointment of, 86. appointment of, for insane or incompetent person, 249, 2271. appointment of, presumption, 87. appointment of, validity, 87, 2219. duty of court to protect rights of infant, 86, 2218. in general, 85-88. power of, to waive notice to ward, 88. power to appoint, not impaired, 118. who is virtually, 2218. GUARDIAN AND WARD (See GuAKDiAN AD litem; Guardian's bond; Eeferences to "Am. St. Eep." notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas."; Eeferences to notes in Hen- ning's General Laws; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Eeferences to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Sections of the Code of Civil Procedure of California, arranged according to subject matter; Spendthrift and drunkard) account, duty to, 2250 accounting and settlement, adjustment of debits and credits, 199. accounting and settlement, admissibility of evidence, 202. accounting and settlement, attacking, 207, 2251. accounting and settlement, conclusiveness of, 207, 2251. accounting and settlement, credits allowable to guardian, 204, 2250. accounting and settlement, death of ward before, 207, 2251. accounting and settlement, discharge of guardian, 208, 2252. GENERAL INDEX. 2965 [References are to pages.] GUAEDIAN AND l^ABD— (Continued) accounting and settlement, essentials of petition for, 198. accounting and settlement, "final" account may be settled though called an "annual" account, 199, 2252. accounting and settlement, guardian is chargeable with compound interest when, 203. accounting and settlement, guardian is chargeable with interest when, 203. accounting and settlement, in general, 198-209, 2250. accounting and settlement, is a "proceeding," 199. accounting and settlement, jurisdiction of court to compel, 213. accounting and settlement, method of compelling, with deceased guardian, 199. accounting and settlement, no jurisdiction to ascertain balance against former ward, 207. accounting and settlement, no necessity of findings on settlement of guardian's account, 198. accounting and settlement, notice by publication, 198. accounting and settlement, notice for statutory period to be given, 198. accounting and settlement, what are proper charges against guard- ian, 203. accounting and settlement, what is not to be allowed guardian, 205, 2251. account of guardian, when to be rendered, 2229. action against guardian, 177, 2245. action against ward, 220, 2257. action by guardian, 177, 2245. action by ward, 218, 2256. allowance of accounts of joint guardians, 132. annual accounts are not required of a guardian, 215. appeal by guardian, 1774. appeal in guardianship proceedings, afiirmance on, 229, 2260. appeal in guardianship proceedings, appealable orders, 227. appeal in guardianship proceedings, dismissal of, 229. appeal in guardianship proceedings, effect of, as stay, 228, 2261. appeal in guardianship proceedings, findings, 228. appeal in guardianship proceedings, in general, 227-229. appeal in guardianship proceedings, presumption on, 229. appeal in guardianship proceedings, record on, 229, 2261, appeal in guardianship proceedings, revival of, 229. application of proceeds of guardian's sale of ward's real estate, 135. application of statutes, 2218. appointment here, notwithstanding foreign guardian, 168. appointment of another guardian, in case of revocation of letters, 1467. 2966 • GENERAL INDEX. [References are to pages.] GUARDIAN AND WASD— (Continued) appointment of appraisers for estate of ward, 128. appointment of general guardian of minor, 78, 2227, 2237. appointment of guardian, 164, 2227, 2233, 2234. appointment of guardian by court, though minor is over fourteen, 106. appointment of guardian by superior court, on what petition, 100. appointment of guardian by will, 77. appointment of guardian, circumstances for consideration, 166. appointment of guardian, necessity of petition and notice, 165. appoiiitment of guardians, power of probate courts, 164, 210, 211. appointment of guardian, validity of, 168, 2239. approval of sale by court, 2247. attack, collateral, on sale by guardian, 2248. attorney fees against minor to be fixed by court, 2233. authority of guardian ends when, 206, 226. awarding child to proper custody, 94, 2223. awarding custody of minor, 78. circumstances for consideration on appointment of guardian, 2237. collateral attack on guardian's sale, 191, 2248. commitment of infants, 91, 2221. common-law power of guardian, 173. compensation and expenses of guardians, 132, 2251. compensation, guardian not entitled to when, 206. completion of contracts for sale of real estate, 2230. conditions of sale of real estate of minor heirs, 149. consideration of post-majority transactions in settlement of ac- counts, 206. contempt of court, 2226. contract for support of guardian, 171. control of property, 170, 2242. conveyance by guardian, 2233, 2247. copy of order of guardian's sale to be served, published, or consent filed, 144. corporation may act as guardian of estate, 165. costs, how awarded, in granting or refusing order for guardian's sale, 145. court may insert conditions in order appointing guardian, 114. court may order investment of money of ward, 150. court to fix attorney fees against minor, 2233. custody of ward, 172, 2242. death of joint guardian, 82. death of ward before settlement of accounts, 2251. discharge of guardian, 84, 2252. discharge of local guardian, having possession of non resident ward '» property, 154. GENERAL INDEX. 2967 [References are to pages.] GUARDIAN AND WABD— (Continued) discharge of person in possession of non-resident ward's property, 154. disposition of proceeds of sales, 135, 136. disqualification of judge, 2263. duties and powers of guardians, 172-174, 2244. duty of guardian to account, 199, 2250. education of ward, how enforced, 126. embezzlement by guardian, 216, 2255. equity jurisdiction in, 2253. examination of persons suspected of concealing ward's property, 157. examination of persons suspected of defrauding wards, 157. exceptions to guardian's account, 201. expenses and compensation of guardian, 132. father's right of access to child, 172. findings are not necessary on settlement of guardian's account, 198. form of affidavit and order remitting clerk's fees, 125. form of certificate of clerk as to copy of letters of guardianship, 114. form of consent of guardian ad litem to settlement of adminis- trator's account, 126. form of consent of guardian to be appointed, 105. form of consent of relative to appointment, 103. form of guardian's annual account, 129. form of letters of guardianship, 113. form of nomination of guardian by minor, 107. form of notice of application for letters of guardianship, 102. form of notice of guardian's sale of real estate at private sale, 142. form of notice of guardian's sale of real estate at public auction, 142. form of oath of guardian, 113. form of order appointing day for hearing petition for guardian- ship, and directing notice to be given, 102, 103. form of order appointing guardian, 104. form of order appointing guardian upon petition for assignment of dower, 655. form of order appointing referee of guardian';; account and ad- journing settlement, 132. form of order fixing time of hearing on petition for removal, 121. form of order for removal of proceedings, 121. form of order for sale of property by guardian, 141. form of order of allowance for expenses of education and mainte- nance, 116. form of order revoking letters for contempt, and appointing some other person administrator, executor, or guardian, 1467. 2968 GENERAL INDEX. [References are to pages.] GUARDIAN AND WARD—(Conti7iued) form of order to show cause why application for leave to seU real estate should not be granted, 140. form of petition for allowance of expenses for education and main- tenance, 116. form of petition for appointment of guardian, 101. form of petition for removal of guardianship proceedings, 120. form of petition for return of habeas corpus for detention of child, 79. form of petition of guardian for order of sale, 137. form of return to writ of habeas corpus, 81. form of verification of guardian's petition for order of sale, 139. form of writ of habeas corpus, 80. guardian ad litem, who is virtually, 2218. guardian, bond of. See Bond of guardian. guardian ad litem, how appointed, 1802. guardian appointed by parent, how superseded, 83, guardian can not do what, 175, 176, 2245. guardian can not purchase at his own sale, 188. guardian is chargeable with what rents, 204. guardian is under direction of court, 82. guardian may do what, 174, 2230, 2244. guardian may sell children's interests in probate homestead, 188. guardian may sell ward's property in certain cases, 134, 2230. guardian not entitled to allowance for permanent improvements when, 205. guardian of infant is not trustee of express trust, 173. guardian of non-resident person, 151. guardian, removal of, 2256. guardian, right of, to allowance for attorney's fees, 204, 205. guardian to maintain ward, 125, 2243. guardian to manage estate, 125. guardian to recover debts due his ward and representative, 124. guardian to render account, when, 2229. guardian to represent his ward, 124. guardian to sell real estate of ward, 125, 2246. guardian will be surcharged with what expenditures, 204. guardian's order for sale of ward's real estate, how obtained, 137. guardian's sale, application of statute to, 925. guardian's sale, hearing of application for, 144. guardian's sale, notice of, must be properly given, 183. guardian's sale, notice of, to next of kin, how given, 139. guardian's sale of land, 180-194, 2246. guardian's sale of land, order for, sufficiency of, 184. guardian's sale of ward's property and disposition of proceeds, 134-150. GENERAL INDEX. 2969 [References are to pages.] GUAEDIAN AND WASD— (Continued) guardian's sale of ward's real estate to be made upon order of court, 135, 2246. guardian's sale, order of, to specify what, 146. guardian's sale, proceedings in, to conform with what title, 148. guardian's sale, publication of notice of, 183. guardian's sale, purchaser and his rights, 188. guardian's sale, setting aside, 189. guardian's sale, validity of, 186. guardianship, how terminated, 158. guardianship of Indians, 169, 2240. gruardianship of non-residents shall extend to what, 153. habeas corpus for custody of children, 92, 2221. Hawaii, 2262. Indians, guardianship of, 2240. infant to appear by guardian, 1802. insane or incompetent person to appear by guardian, 1802. interested witness, or party to suit involving ward's estate or rights, guardian or next friend as, 220, 221. inventory and appraisement of ward's estate must be recorded, 128, 2228. inventory of ward's estate to be returned by guardian, 128, 2228. investment of proceeds of guardian's sale of ward's real estate, 136. investments by guardian, 178, 2246. investments by guardian, liability for, 214, 2246. investments by guardian, protection of order of court, 215, 2254. investments by guardian, without order of court, liability for, 214. judge, disqualification of, 2263. jurisdiction of courts in matters of guardianship, 210-212, 2233. jurisdiction of courts to determine state of accounts between, 200. jurisdiction of equity in matters of guardianship, 212, 2253. kinds of guardians, 76, 85. land sale by guardian, 2246. lease and demise of ward's property, 193, 2248, 2465. letters and bond to be recorded, 115. letters of guardianship may be granted by judge at chambers, 164. liability of guardians for investments made without order of court, 214, 2253. liability of guardians, in general, 214-216, 2253, 2255. limitation of actions, 226, 2260. limitation of actions for recovery of property sold, 160, 2260. limit of order of guardian's sale, 149. limit of power of guardian over estate of ward, 213. maintenance of ward, 170, 171, 2242, 2243. maintenance of ward, how enforced, 126. maintenance out of income of ward's own property, IIS, 2970 - GENERAL INDEX. [References are to pages.] GVABDIA'N A'ND WARD— (Continued) marriage does not affect guarcliaii.sMp, 107. marriage of minor, 2226. matters of guardianship over which probate courts have no juris- diction, 212. method of compelling settlement of accounts with deceased guard- ian, 199. money of ward, court may order investment of, 150. more than one guardian may be appointed, 161. mortgage of ward's property, 194-196, 2465. mortgage of ward's property, authority to make, 194, 2249, mortgage of ward's property, petition as foundation of jurisdic- tion, 194, 2249. mortgage of ward's property, revival and foreclosure of former mortgage, 196. mortgage of ward's property, validity of, and of order, 196. mother's incapacity to appoint testamentary guardian, 2220. necessity of petition and notice, 2236. no collateral attack on. judgment when, 209. no disaffirmance of parol partition when, 221. no estoppel to deny that one is guardian, 167. nomination of guardian by minors after fourteen, 107. non-resident guardians and wards, 151, 155, 196-198, 2250. notice by relatives to guardian of minor, 2227. notice of guardian's sale of land, 2247. notice to be given before appointment of guardian, 100, 2236. notice to guardian by relatives, 2227. order appointing guardian, how entered, 161. order for sale of real estate, 2247. order for temporary custody on petition for appointment of guard- ian, 100. petition for appointment of guardian, necessity of, 100, 2236. petition for guardian's sale, requisites of, 181, 2246. power of guardian, as to contracts, 173. power of guardian, in partition, 127. power of guardian, is superseded when, 122. power of guardian, to assign appropriation made for ward by pro- bate court, 174. power of guardian to compromise or settle claims of ward, 174. power of surety company to act as guardian without bond, 168. powers and duties of guardians, 108, 123, 133, 2228. powers and duties of guardians appointed for non-residents, 151. power to appoint guardian ad litem not impaired, 117. probate court has no jurisdiction over what matters of, 315, 2246. probate judge has power to order a guardian to increase his ward's allowance, 171. GENERAL INDEX. 2971 [References are to pages.] GTJAEDIAN AND 'WARD— (Continued) proceedings on removal of non-resident ward's property, 154. refusal of guardian to return inventory, 2228. relation of, is confidential, 82. release of guardian by ward, 84. relief in equity from orders settling accounts of guardian, 208. removal of guardian, 83, 217, 2256. removal of guardian and surrender of estate, 158. removal of non-resident ward's property, 153. request by relatives to guardian for information, 2227, 2228. resignation of guardian and surrender of estate. 158. right of guardian to remove incompetent or infant from the state, 173. right of mother or reputed father to guardianship of illegitimate child, 165. right to appointment as guardian, 164, 2234. rights and liabilities of ward, in general, 218-221. rights and powers of guardians, 174-180, 2244. rights of non-resident, 196-198. rights of purchaser under sale by guardian, 2247. sale of land by guardian, 2246. sale of real estate, completion of contract for, 2230. service of process on guardian, 178, 1468. setting aside sale by guardian, 2247. settlements of guardians, 129. short form of appointing guardian, 104. statutes, application of, 2218. support of abandoned child, 172. support of ward, 170, 2242, 2243. support of ward, how enforced, 126. suspension of power of guardian, 84. testamentary guardian, 2220. validity of appointment of guardian, 2239. validity of sale by guardian, 2247. ward's debts to be paid out of ward's estate, 123, 124. what items are properly disallowed in guardian's account, 205, 206. what orders to guardian are appealable, 1782. what provisions of code apply to guardians, 162. who is a general guardian, 76. who is a guardian, 76. who is a special r;uardian, 77. who is a ward, 76. who is virtually guardian ad litem, 2218. who may be examined on hearing of application for guardian's sale, 145. ' who may be guardian, 107, 2234. Probate Sup. 50. 2972 GENERAL INDEX. [References are to pages.] GUARDIAN'S BOND (See Bond of guaedian; References to notes in "Kerr's Cal. Cje. Code Civ. Proc"; Sureties) GUARDIANSHIP (See References to "L. E. A." notes) GUARDIANSHIP OP MINORS (See Sections of the Civil Code of California, arranged according to subject-matter; Sections of the Code of Civil Procedure of Cali- fornia, arranged according to subject-matter) guardian to give notice to relatives on request, 2227. what such request shall contain, 2228. GUARDIANSHIP OF INSANE PERSONS ANfi OTHER INCOMPE- TENTS (See Incompetent persons; Insane persons; Sections of the Code of Civil Procedure of California, arranged according to subject- matter) actions by guardian, 250. adjudication of insanity, and its effect, 255-257. ad litem, guardian, 2271. appeal and review, 2274. appointment of general guardian, 245-249, 2267. appointment of general guardian, authority of court, 245. appointment of general guardian, notice and personal preseree, 246. appointment of general guardian, notice by publication, 248. appointment of general guardian, petition for, 245. appointment of general guardian, validity of notice, 247. appointment of guardian ad litem, 249. appointment of guardian by court after hearing, 231, attorneys for estates of insane, etc., and their fees, 250, 2272. certificate of inability to attend, 231, 2265. collateral attack on proceedings, 248. conduct of ward's business, 250, 2272. conservator, compensation of, 253. conservator, discharge of, 253. conservator, exception to report of, 253. conservators in Colorado, 251-253. conservators in Colorado, duties of, 252. conservators in Colorado, investment of fimds by, 252. contracts and rights of insane persons, 2273. definition of "incompetent," 242, 2266. evidence as to insanity, 255. evidence of insanity of ancestors or kindred, admissibility of, on issue of sanity. 256. fees of attorneys, 2272. GENERAL INDEX. 2973 [References are to pages.j GUAEDIAN8HIP OF INSANE PERSONS AND OTHEE INCOMPE- TENTS— CContimied; form of judgment of restoration to capacity, 241. form of notice of guardian's sale of incompetent's real estate at private sale, 237. form of notice of sale of real estate by guardian of incompetent person, 236. form of order appointing guardian of incompetent person, 234. form of order directing payment of monthly allowance' for support of feeble-minded, 239. form of order for notice of hearing of petition for guardianship of incompetent person, 234. form of order to show cause why order of sale of incompetent's real estate should not be granted, 238. form of order to show cause why order of sale of insane person's real estate should not be granted, 237. form of petition for appointment of guardian of incompetent per- son, 233. form of petition for appointment of guardian of insane person, 232. form of petition for judgment of restoration to capacity, 240. form of proceeding for restoration to capacity, 239. general guardian, appointment of, 2267. guardian ad litem, 2371. guardian is not authorized to mortgage when, 249, guardians of insane, etc., 230-260. inability to attend, certificate of, 2265. jurisdiction of probate courts, 244, 2266. lunacy proceedings, collateral attack on, for want of notice, 249. lunacy proceedings, necessity of notice, 248. note on, 243-260. notice and personal presence, 2269. notice of time and place of hearing, 231, 2264. personal presence and notice, 2269. petition for, authority of court, 2267. power and authority of guardian of insane person, 250. power of guardian or committee to bind incompetent person or his estate by contract, 250. powers and duties of guardian of incompetent person, 235, 2265. powers, duties, and liabilities of guardian, 249-251, 2272. presumption as to insanity, 255. probate courts, jurisdiction of, 2266. proceedings against insane persons, 257, 258. removal of conservator, 253. report, account, and settlement of guardian of, 253. restoration to capacity, 2273. 2974 GENERAL INDEX. IReferences are to pages.] GUAEDIANSHIP OF INSANE PEBSONS AND OTHER INCOM- PETENTS— CComitMed; revocation of appointment, 2270. right of insane person to institute proceedings by next friend, 255. sanity and disability, meaning of, 243, 2266. support, maintenance, and custody, 249. termination of, 256, 2273. time and place of hearing, notice of, 231, 2264. use, by a court of chancery, of lunatic's property, 255. what is no defense to action by guardian, 251. GUARDIANSHIP SALES OP PROPERTY (See Sections of the Code of Civil Procedure of California, arrangecl according to subject-matter) HABEAS CORPUS (See References to "Am. Dec." notes; References to "Am. St. Eep." notes; References to "L. R. A." notes) for body of insane or incompetent person, 281, 289. HABEAS CORPUS FOR CUSTODY" OF CHILDREN appeal from judgment in proceedings, 98, 2226. attacking adoption proceedings, 96. attacking guardianship proceedings, 96. awarding child to proper custody, 94, 2223, contempt of court, 2226. discharge and dismissal of return, 97. form of writ of, 80. former adjudication as res judicata, 97. in general, 92-98. jurisdiction of courts, temporary order, 93, 2221. jurisdiction of probate courts in Kansas, 93. nature of proceedings, 92, 2221. petition for writ of, 79. return to writ of, 81. welfare of infant controls, 94, 2221. what matters, only, will be considered, 93. writ of prohibition not issuable on, 98. HALF BLOOD (See References to "Am. Dec." notes; References to "L. E. A." notes) right of heirs of, to inherit, 47, 48. right of kindred of, to inherit, 30. HANDWRITING proof o2, on contest of probate of will, 1656, GENERAL INDEX. 2975 tRefcrences are to pages.] HAWAn adoption of ehildren in, 21. rights of doweress in, 664. HEABING (See FoKMs) at time of settlement, further notice may be ordered, 1173. failure to give notice of, of petition for letters of administration is fatal, 380. form of memorandum, by clerk, fixing time for, for partial dis- tribution, 1278. form of notice of application to restore destroyed records, by ordei of court, and of time and place fixed for, in case of entire destruction, 1816. form of notice of application to restore destroyed records, by order of court, and of time and place fixed for, in case of partial destruction, 1817. form of order continuing, 1457. form of order requiring notice of application for restoration of records, and of the setting of said application for, 1815. notice of time and place of, in proceedings against alleged insane or other incompetent person, 231. of application for guardian's sale, 144. of application for guardian's sale, who may be examined, 145. of application for letters of administration, 380. of application for partial distribution, 1289. of application for removal of executor or administrator, 486. of application to sell real estate to pay debt, contest of debts, 909. of citation to show cause why further security should not be given, 426. of contest of application for letters of administration, 357. of guardianship proceedings for spendthrift, 262. of notice of application for letters of administration, day of, to be set by clerk, 356. of order to show cause why real estate should not be sold, pre- sentation of claims, 830. of petition for order to mortgage or to lease decedent's real estate, 980. of petition for revocation of letters of administration, 399. of proceedings for removal of executor or administrator, any party interested may appear on, 486. of proceedings to obtain order to lease decedent's real estate, 988. of proofs and issuance of letters of administration, 361. of return of proceedings for sale of real estate, 848. on final settlement, and contest by heirs, 1191. 2976 GENERAL INDEX. [References are to pages.] TSLEABmG— (Continued) on proceedings to sell decedent's property to pay debts, etc., 914, 915. on settlement of accounts, 1202-1205. proof of will after proof of service of notice of, 1626. question of heirship may be determined on, of petition for distri- bution, 1357. right to, of executor or administrator before removal or suspension, 497. what petitions may be heard together, 381. HEARING AND EXAMINATION of alleged insane person, form of certificate of service of certified copy of order for, 272. of alleged insane person, form of certified copy of order for, 272. of alleged insane person, form of order fixing time for, 271. HEms (See Complaint; Heirship; Eeferences to "Am. Dee." notes; Eefer- ences to "Am. St. Eep. " notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Bng. Ann. Gas."; Eefer- ences to notes in "Kerr's Cal. Cyc. Code Civ. Proe. ") actions between heirs and devisees, 1337. aetibns by, against administrators individually, 1334. actions by, against administrators, in general, 1333, 2547. actions by, counterclaim will not be considered when, 1333. actions by, effect of laches, 1335. actions by, in ejectment, 1331. actions by, in general, 1329. actions by, in partition, 1332. actions by, judgment for heirs as an estoppel, 1333. actions by, on promissory notes, 1333. actions by, to enforce trust, 1332. actions by, to quiet title, 1333. actions by, to set aside probate S9,le, 933. actions by minor, to set aside probate sale, 933. appointment of agent for non-resident, 2557. appointment of attorney for, 1327. appointment of attorney for absent, 1491. as witnesses in contest of will after probate, 1709. burdens cast upon, 1327-1329. considering question of advancements to, on partition in connection with distribution, 1391. contracts relinquishing rights as, 1344. conveyance by, is good, unless will is proved within four years, 1584. GENERAL INDEX. 2977 [References are to pages.] HEIRS— (Continued) court has no power to appropriate share of, to payment of debts, 312. devise to, construction of, 1570, 2646. devise to unnamed, 1592. estoppel of, 1339, 2547. executor or administrator to deliver real estate to when, 515. form of affidavit of mailing notice to, 1624. judgment liens against, 1329. jurisdiction of courts to determine conflicting interests of, 1344, 2548. liability of, in general, 1339. liability of, limitation of, 1340. mortgages by, pending administration, 1313. no allowance to, of costs and expenses from estate, 1341. not prejudiced by probating of will, 2548. notification to, of time appointed for probate of will, 1623. of half blood, right of, to inherit, 47, 48. petition by, to recover money escheated to state, 67. presumption in favor of, that community debts have been paid, 1329. presumption in favor of, where there is no administration upon the community property, 1329. purchaser from, does not acquire what, 1343. purchaser from, in general, 1342. right and title of, to antemortem homestead, 608. right of, respecting probate sales, 931-934. right of, to attack sale of property, for fraud, 1338. right of, to attack sale of property, for want of jurisdiction, 1337. right of, to contest accounts, 1344, 2548. surviving, may collect money deposited in bank, 5l5, 2332. under guardianship, rights of, respecting probate sales, 933. vesting of property in, 1327-1329, 2546. what matters may be contested by, on accounting and settlement, 1191. who may testify in controversies as to relative right of, 1842. HEIRSHIP (See Heies; Sections of the Codie of Civil Procedure of California, arranged according to subject-matter) appeal in proceedings to determiiie, conflicting evidence, 2544. appeal in proceedings to determine further proof, 2544. appeal in proceedings to determine, must be taken when, 1299, 2544. appointment of attorney for minor in proceedings to determine, 1300. conclusiveness of determination as to, 1300. 2978 GENERAl. INDEX. [References are to pagea.] HEIRSHIP— ('Continued; cost of proceedings to deterintne, how apportioned, 1300. court acquires jurisdiction to ascertain and determine when, 1298. court to determine who are entitled to distribution, 1299. default, entry of, in proceedings to determine, 1299. degrees of kinship, 2545. depositions, service of notice of taking of, in proceedings to deter- mine, 1299. evidence in proceedings to determine, how taken, 1299. evidence, declarations of family, 2545. form of acknowledgment of attorney's authority to appear in mat- ters of, 1304. form of answer to complaint on claim of, 130.5. form of attorney's authority to appear in matters of, 1303. form of complaint on claim on, 1304. form of decree establishing, 1306. form of entry of default on petition to ascertain, 1305. form of notice upon filing of petition to ascertain rights as heirs, 1301. form of order establishing service of notice to determine, 1303. form of order upon filing of petition to ascertain rights as heirs, 1302. form of petition for ascertainment of rights as heirs, 1300. order directing service of notice to appear and show cause, on filing of petition to determine, 1297. party filing complaint, is to be treated as plaintiff, 1299. petition to determine, may be filed when, 1297. plea to complaint setting forth, 1298. procedure to determine on death of entryman before patent issued, 2579. procedure to determine, in general, 1297. procedure to determine, jurisdiction of courts, 1320. procedure to determine, jurisdiction of courts, limitations on, 1322. procedure to establish, appeal, 1326. procedure to establish, costs, 1326. procedure to establish, decree, 1326, 2544. procedure to establisfli, in general, 1323, 2543. procedure to establish, parties, 1324. procedure to establish, plea, 1324. procedure to establish, trial, 1325, 2543. question of, is. involved when, in contest for letters of administra- tion, 382. question of, may be determined on hearing of petition for distribu- tion, 1357, 2552. right to motion for new trial in proceedings to determine, 12£9. service of notice and decree establishing proof of, 1298. GENERAL INDEX. 2979 [References are to pages.] KEIRSniP— (Continued) to be determined by court when, 1299. who is to be treated as plaintiff, 1299. who may file complaint setting forth, 1298. HENNING'S GENERAL LAWS (See References to notes in Henning's General Laws) HOLOGRAPHIC WILLS (See References to "Am. Dec." notes; References to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Cas. "; Refer- ences to notes in "Kerr's Gal. Cye. Civ. Code"; References to notes in ' ' Kerr 'a Cal. Cyc. Code Civ. Proc. ' ' ; Wills, execution of ; Wills, classes of) HOMESTEAD, ANTEMORTEM (See Homestead, in general) abandonment of homestead, 599, 2366. alienation of, 613, 2376. application of statute concerning, 596, 2364. appraisement of, 606, 2371. carving, out of original, exceeding five thousand dollars in value, 590. construction of codes, 2376. costs of setting apart, to whom chargeable, 594. definition of "homestead," 596, 2362. determination of right to, 618, 2385. division or sale of, 608. duty of appraisers before making return, 590. exemption of, construction of codes, 611. exemption of, in general, 610-613, 2372-2376. exemption of, limit as to value, 613. exemption of, policy of the law, 610. exemption of, to "family" of owner, 612, 2376. foreclosure without presentment, 616, 2385. form of notice of hearing of report of appraisers as to, 592. form of order setting apart, out of property worth more than $5,000 when selected, 593. form of order setting apart recorded homestead of value less than $5,000, selected by decedent out of his or her separate prop- erty, 551. form of order setting apart recorded homestead of value less than $5,000, selected by the survivor only, out of decedent's sep- arate property, 552. form of order setting time for hearing report of appraisers and prescribing notice, value exceeding $5,000, 592. 2980 GENERAL INDEX. [References are to pages.] HOMESTEAD, ANTEMORTEM— ('ConMnwed; in general, 595, 2359. inventory of decedent's estate to include, 502, law at death controls, 598, 2365. liens and payment, 617. may be abandoned how, 599. no money in lieu of, 605. order setting apart, effect of, 605. order setting apart, in general, 604. partition of, 619. policy of the law, 2376. presentation of claim against, foreclosure of mortgage without, 616, 2385. presentation of claim against, in general, 614. presentation of claim against, necessity of, 614. presentation of claim against, statute of limitations, 616. remainder in fee after, is subject to administration, 527. report of appraisers as to division of property, 591. report of appraisers, day to be set for confirming or rejecting, 591. report of appraisers, hearing and consideration of, 591. report of appraisers, majority and minority, 591. report of appraisers, notice of hearing of, 591. right and title of survivor, heirs, successors, and children, 608-610, 2371. right of decedent's family to remain in possession of, 546. right of survivor to, 589, 2358. right to homestead, 599, 2365. selected and recorded, to be set apart for use of family, 565. selected and recorded, to be set off to person entitled, 590. selected from community property, 601, 2368. selected from separate property, 601, 2369. selection of, what is not a, 600. setting apart, duty of court, 603, 2370. statute of limitations, application of, 599, 2366. subsisting liens to be paid by solvent estate, 590. survivor must be "the head of a family," 599, 2264. survivorship, law of title by, applies to what, 598, 2364. value of, how limited, 606. vesting of, declared by husband, 603, 2368. vesting of, in general, 601, 603. vesting of, selected from community property, 601. vesting of, selected from separate property of person selecting or joining in selection of same, 601. vesting of, selected from separate property without owner's con- sent, 602. when all property other than, to go to children, 563. GENERAL INDEX. 2981 [References are to pages.] HOMESTEAD, DOWER IN (See References to "L. R. A." notes) HOMESTEAD, IN GENERAL (See References to "L. R. A." notes; References to notes in "Kerr's Cal. Cye. Code Civ. Proc"; Sections of the Code of Civil Pro- cedure of California, arranged according to subject-matter) certified copies of what orders to be recorded, 594. disposition of, on owner's death, in certain cases, 1469. foreclosure of mortgages on, 780-782, 2385. form of decree declaring, vested in survivor, 1474. form of petition for decree vesting, in survivor, 1473. non-appealable orders, what are, 1785. policy of the law, 610, 2376. power to encumber or alienate, 637. presentation of claim, mortgage lien, 638, 2385. right of person succeeding to right of homestead owner, 594, 2385. succession to, 43. tenure by which it is held, 1803. HOMESTEAD OF INSANE PERSON (See Sections of the Civil Code of California, arranged according to subject-matter) alienation of, in general, 646-651. form of grant of, by spouse of insane person, 650. form of mortgage of, by spouse of insane person, 650. form of order permitting spouse of insane person to sell or mort- gage, 649. form of petition by spouse of insane person for leave to convey or mortgage, 647. in general, 651. notice of application for order to sell or mortgage, 648. order to sell or mortgage, eifect of, 648. order to sell or mortgage may be made when, 648. petition for sale or mortgage of, 646. HOMESTEAD, PROBATE (See Appraisebs op homestead; Homestead in geneeal; References to "L. R. A." notes) appeal from order granting or denying, 644. application to set apart, 622, 2388. appraisement is not necessary when, 624. children's interests in, may be sold by guardian, 188. definition of "homestead," 620. determination of right to, 641. exemption of, from execution or forced sale, 644, 2982 . GENERAL INDEX. [References are to pages.] HOMESTEAD, FROBATB— (Continued) for "a limited period," 629-632, 2390. for a "limited period," dissenting opinions, 631. form of order setting apart, where none was recorded, 552. form of petition for decree setting apart, for use of family, 549. from community property, descends how, 188. how to be selected, 623. in general, 619, 2387. jurisdiction of court to set apart, 622, 2388. loss of right to, 641. mandatory nature of proceedings to set apart, 621. minor children's right to, 633, 2391. mortgage lien, presentation of claim, 638. no money in lieu of, 634. order setting apart, conclusiveness of, 636, 2391. order setting apart, effect of, 635, 2391. order setting apart, finality of, 636, 2391. order setting apart, no collateral attack on, 643. order setting apart, vacating, 643. order setting apart, validity of, 634. order setting apart, without notice is valid, 634. procedure and practice in setting apart, 624. purpose and restriction of statute relative to, 621. residence is not essential to, 620. right to, is paramount to testamentary disposition, 621, 2348, 2387. surviving husband's right to, 632. value, no specific limit to, 639. vesting of title to, 642. waiver of right to, 641. what property is subject to, 624. 2388. what property is not subject to, 626, 2389. widow's right to, how not affected, 628. widow's right to, in general, 627. widow's right to, limitations on, 629. HOMESTEAD UNDER UNITED STATES LAND LAWS can not Be sold for benefit of creditors, 894. HOMICIDE (See Eeferences to "L. E. A." notes) HUSBAND distribution of common property on death of, 34. effect of death of, as to community property, 1733. power of, over community property, 1738. GENERAL INDEX. 2983 [References are to pagesi] B.VSBAND-^( Continued) right of husband and wife to inherit from each other, 33. right of surviving, to probate homestead, 632. title to homestead declared by, vests how, 603. ILLEGITIMATE CHILDREN (See Eeferences to "Am. St. Hep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas. "; Eefer- ences to notes in "Kerr's Cal. Cyc. Civ. Code") adoption of, 10, 16, 17, 2191. construction of Utah statute concerning, 57. evidence of recognition of, 55. inheritance by or through, 54-58, 2211. legitimacy, how inferred, 57. presumption as to legitimacy, 56. right of mother or reputed father to guardianship of, 165, right of pretermitted, to inherit, 58. right of, to inherit, acknowledgment, 54, 2211. right of, to inherit in certain events, 27. succession of, to property of, 27. succession to estate of, not acknowledged or adopted, 55. sufficiency of acknowledgment to make child an heir, 55. IMPROVEMENTS authority of executor or administrator to make, 1090, 2493. IMPROVIDENCE what, does not disqualify applicant for letters of administration, 391. INCOME (See ACCUMTJLATION OF dtcome) application of, to support, etc., of minor, 1802. INCOMPETENT PERSONS (See Guardianship op insane persons, and other incompetents; References to "Am. St. Rep." notes; Eeferences to "L. R. A." notes; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc") decree that conveyance be made for, 162. if entitled to letters, who must be appointed, 350. or infant, right of guardian to remove from the state, 173. powers of persons whose incapacity has been adjudged, 1803. proceedings for guardianship of person or estate of, may be trans- ferred from one county to another, 118. proceedings to mortgage or lease the real property of, 977-994. ■to appear by guardian, 1802. 2984 GENERAL INDEX. [References are to pages;) INDEBTEDNESS (See References to "L. E. A." notes) INDIANS adoption of Indicn children, 15. guardian of, entitled to credit for what, 169. guardianship of, 169, 2240. inheritance by, 53, 2206. INDOESEMENTS form of, on back of creditor's claim, 674. INEBRIATES AND DRUNK HABITUES arrest, hearing and commitment of, 2276. INFANTS (See Children; minors; References to "L. E. A." notes) commitment of, 2221. service of process on guardian of, 258. to appear by guardian, 1802. INFOEMATION against habitual dnmkard, 264. of attorney-general to escheat property to state, 61. INFORMATION "OR" BELIEF certification of pleading to be made on, 1835. INHERITANCE (See References to "Am. Dec." notes; References to "Am. St. Rep." notes; References to "L. E. A." notes; References to notes in "Am. & Eng. Cas."; References to notes in "Kerr's Cal. Cyc. Civ. Code") aliens must claim within five years, 36. by aliens, 35, 52, 2206. by convict, 51, 2205. by Indians, 53, 2206. by or through illegitimate children, 54-58, 2211. by representation, 35. convicted murderer no right of, 37. effect of not claiming succession, 36. of children, 2204. of husband and wife from each other, 33. right of adopted child to inherit, 20, 2195. succession to property, 22, 58. taking by contract, and not by succession, 54. who can not inherit, 51. GENERAL INDEX. 2985 [References are to pages.] INHERITANCE TAX (See Collateral-inheritance tax; Eeferences to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Gas."; Eeferenees to notes in Henning's General Laws) INJUNCTION (See Complaint; Eeferenees to "L. R. A." notes) action by executor or administrator for, 1058, INSANE DELUSIONS (See References to "Am. St. Rep." notes) INSANE PERSONS AND OTHER INCOMPETENTS (See Commitment and disohakqe of insane persons; Guardianship OF insane persons and other INCOMPETENTS; INCOMPETENT PERSONS; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas."; References to notes in Henning's General Laws; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Sections of the Civil Code of California, arranged according to sub;jeet-matter; Sections of the Political Code of California, arranged according to subject-matter) action by insane person, 255. appeal from and review of proceedings concerning, 259. as witnesses in contest of will after probate, 1709. commitment and discharge of insane persons, 268-292. contract of conveyance of insane person; validity of, 288. contracts and rights of insane persons, 254, 288. contracts by persons without understanding, 285. conveyances or contracts by persons of unsound mind, 285. decree that conveyance be made for incompetent, 162. deed by insane person when under guardianship, 255. deed to homestead of insane person, validity of, 289. execution for or against, 258. guardians of insane and other incompetents, 230-260. judgment against, validity of, 258. jurisdiction of probate courts as to, 244. limitations of actions to set aside a judgment against, 258. mortgage on homestead of insane person, validity of, 289. opinion evidence, admissibility of, as to mental capacity of person to execute contract or deed, 255. powers of persons, whose incapacity has been adjudged after resto- ration to reason, 284. proceeding for guardianship of person or estate of, may be trans- ferred from one county to another, 118. proceedings against insane persons, 257. restoration to capacity of, 256. 298B GENEEAL INDEX. .[References are to pages.] INSANE PERSONS AND OTHER INCOMPETENTS— ('Cdretmued; test of mental capacity to make contracts, 255. to appeal; by guardian, 1802. validity of deed by incompetent person, 255. INSANE SPOUSE (See References to "L. R. A." notes) INSANITY (See Commitment and discharge op insane persons ; Guardianship OP insane persons and 'other incompetents; Incompetent PERSONS; Insane persons and other incompetents; References to notes in ' ' Am. & Eng. Ann. Cas. ' ' ; Wills, contest of probate of) INSOLVENT ADMINISTRATOR (See References to "L. B. A." -notes) accounting and settlement by, 1228. INSOLVENT ESTATE but one petition, order, and sale must be had in case of, 791. form of decree settling final account in, 1251. form of final account, report, and petition for distribution in case of, 1181. INSTRUCTIONS and advice to executors and administrators, 1096. to jury on trial of contest of probate of will, 1677. INSURANCE-MONEY collected by guardian is no part of estate, 203. duty of guardian concerning, 203. goes directly to heirs, 203. rights of executors as to, 203. INTEREST (See References to "Am. Dee." notes; References to notes in "Kerr's Cal. Cyc. Civ. Code") bequest of, or income, 1585. execute? or administrator is chargeable with compound interest when, 1129. executor or administrator is chargeable with simple interest when 1128. executor or administrator is chargeable with when, 1126. guardian is chargeable with, when and how, 203. legacies bear, from what time, 1586, 1598. mere possibility is not an, 1804. GENERAL INDEX. 2987 '[References are to pages.] INTEREST— ('ConftriMed; on allowed claims against estate, 730. on allowed claim to be same as on judgment, 677, payment of interest-bearing claims, 692, 1267. recovery of, in suit on claim against estate, 746. recovery of, on foreclosure of mortgage against estate of decedent, 774. INTEEEERENCE WITH ESTATE liability for, 518. INTERPRETATION OF WILLS (See Sections of the Civil Code of California, arranged according to subject-matter) INTERROGATORIES concerning alleged embezzlement of estate to be in writing, 540. INTERVENTION in contest of will after probate, 1706. INVENTORY AND APPRAISEMENT (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) appraisement, and pay of appraisers, 502, 2332. appraisement, form of bill of appraisers, and oath thereto, 507. appraisement, form of certificate of appointment of appraisers, 505. appraisement, form of certificate of appraisers, 507. appraisement, form of inventory and appraisement, 506. appraisement, form of oath of appraisers, 505. appraisement, form of order appointing appraisers, 504. appraisement, in general, 502, 2339. appraisement, oath of appraisers, 503. appraisement of antemortem homestead, 606, appraisement of money, 508. appraisement of probate homestead unnecessary when, 624, appraisement of property subsequently discovered, 531. inventory, after-discovered property, 512. inventory and appraisement, aflSdavit to accompany, 529, inventory, and collection of effects of decedent, 501-544, inventory, as evidence of value, 530, 2340. inventory, contents of, 504. inventory, correction, how made, 2341. inventory, effect of filing, 530. inventory, estate of ward, guardian to return, 128. inventory, filing of, is not essential to its "return," 530. Probate Sup. 51. 2988 GENERAL INDEX. [References are to pages.] INVENTORT AND APPRAISEMENT— ('Continued; inventory, filing of, is notice of wife's title to property, 1731. inventory, form of, and appraisement, 506. inventory, how made, 503. inventory, in general, 528, 2339. inventory is "returned" when, 530. inventory must contain account of all moneys, 508, 530. inventory must include debt or demand due from executor or ad- ministrator, 530. inventory, must include return of money, 530. inventory must include what, 530, 2339. inventory, no estoppel from filing, 531. inventory, oath to, 510. inventory, revocation of letters for neglect to return, 510. inventory, second or further, 530, 2340. inventory, to be filed by public administrator, 1499. inventory, to include homestead, 502. inventory, valuation of, is not conclusive, 530. INVESTMENT OF MONEYS (See Sections of the Civil Code of California, arranged according to subject-matter) by conservators, 252. by guardian, 178, 2246. by guardian, liability for, if made without order of court, 214, 2246. by guardian, protection of order of court, 215. by trustee, statutory duty respecting, 1805. form of notice of hearing of petition for leave to invest moneys of estate, 1022. form of order directing investment of moneys of estate in United States bonds, 1023. form of order directing publication of notice of petition for leave to invest, 1022. form of petition for leave to invest moneys of estate in United States bonds, 1021. of money of ward, court may order, 150. of proceeds of guardian's sales, 136. pending settlement of estate, court may order moneys to be invested, 1020. power of guardian respecting, 178. what is required of executor or administrator as to, 1090. INVOLUNTARY TRUST resulting from negligence, etc., 1805. GENERAL INDEX. 2989 [References are to pages.] lEEEGITLAEITT effect of, in decree of final distribution, 1368. in proceedings to lease decedent's real estate, effect of, 989. in probate sales may be cured by retroactive acts, 925. in sales of decedent's property, effect of, 921. ISSUE, IN GENERAL how tried and disposed of, 1464. jury trial of, on contest of probate of will, 1669. on contest of will after probate, 1706. on contest of will after probate, trial of, by jury, 1707. raised on application for probate of will, 1637. upon offering foreign will for probate, 1692. ISSUES OF EACT petition to revoke probate of will, how tried, 1699. trial of, on contest of will after probate, 1699. ISSUE OF INSANITY (See Eeferences to notes in "Am. & Eng. Ann. Cas.") JOINT ADMINISTRAT0E8 bond of, 1039. foundation of liability of, 1040. in general, 1039. obligation and liability of, 1039. JOINT AND MUTUAL WILL (See References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas.") JOINT AND SEVERAL BOND effect of representatives' giving, 486. JOINT GUARDIANS allowance of accounts of, 182. JOINT LIABILITY none between sureties on separate bonds of eo-executors, 443. JUDGE at chambers may grant letters of guardianship, 164. has power to order guardian to increase his ward's allowance, 171. is disqualified to act in probate matters when, 475. is disqualified when, 480, 2324. may require what, in ease of deficient bonds, 421. must approve bond of executor or administrator, 417. power of, to approve and allow claims, 721. 2990 GENERAL INDEX. [References are to pages.] JUDGE'S CEETIFICATE sufficiency of, on appeal from order made on accounting and settle- ment, 1242. JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR (See Judgment in general) against estate of decedent, payment of, 1270. against executor or administrator on claim against estate, 756-760. conclusiveness of, upon sureties on administration bonds, 439. effect of, against executor, 684. in action against executor or administrator, 1072. JUDGMENT IN GENERAL (See References to "Am. Dec." notes) against insane or incompetent person, validity of, 258. allowance of, as claim against estate, 729. and allowed claims bear the same interest, 677. construing trust, 1437. correction and execution of, on appeal to circuit or district court, 1795. for heirs as an estoppel, 1333. form of, of restoration to capacity, 241. form of petition for, of restoration to capacity, 240. in action by executor or administrator, 1050. in action on administration bond, 450. in action to foreclose mortgage against estate of decedent, 774. in escheat proceedings, 73. may be attacked directly or collaterally, and set aside, if void, 296. of allowance of claims against estates, 726. of drunkenness, 263. of drunkenness, petition to vacate, 266. of drunkenness, vacation of, 266. of insanity, form of, 276. of probate court, collateral attack on, 316. on contest of will after probate, 1699. preference of, in payment of debts, 1270. relative to collateral-inheritance tax, conclusiveness of, 1770. remedy of party aggrieved by, 316. what judgment in case of death is not a Uen, 686. without jurisdiction is void, 296. JUDGMENT LIEN against heirs, 1329. GENERAL INDEX. 2991 [References are to pages.] JUDGMENT BOLL (See Appeal) on appeal from order made on accounting and settlement, what constitutes, 1240. JURISDICTION (See Probate sales; Eeferences to "Ii. R. A." notes; References to notes in ' ' Am. & Eng. Ann. Cas. ' ' ; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Sections of the Code of Civil Procedure of California, arranged according to subject- matter; Wills, contest of probate of; Wills, probate of) adjust disputed rights generally, to, 313, 2289, as to general and special administration, 372. circuit courts of Oregon, 2286. collateral attack on, 316, 2290. concurrent, 320, 2283. conflict of, 305, 372, 385, 2287. conflict of, respecting right of public administrator to letters of administration, 1507. construction of statute as to, 298. county courts of Colorado, 304, 2285. county courts of South Dakota, 2285. court is not authorized to make what orders respecting a guardian, 212. . court may compel accounting by surviving partner, 1105, defined, 296. district courts of Arizona, 301, 2284. district courts of Kansas, 301. district courts of Montana, 301, 2284. district courts of Oklahoma, 2286. district judges in Alaska, 2285. does not exist when, 309. effect of assuming, and refusing to exercise, 299, 2283. exclusive and conflicting, 304-306, 2286. exclusive, of county courts of Oregon, 305, 2286. .exclusive, of superior courts of Washington, 2286. exclusive, where estate is in more than one county, 294, exercise of, 299, 2283. exists in what eases, 306. facts essential to give, 369, 2282. higher courts have none when, on appeal, 296. how conferred by petition to administer assets, 385. in case of power of sale in will, 1448. in county in which estate has not been "devised," 310, 2288. in equity, 317-320, 2291. in equity, does not exist when, 318. 2992 GENERAL INDEX. [References are to pages.] JVBISDICIION— (Continued) in equity, over estate where partnership existed, 1098. in equity, over' trusts under wills, 1447.. in general, 295. in matters of guardianship, 210, 315. in particular matters, 308, 2287. in proceedings to mortgage decedent's real estate, 981. in suits on claims against estates, 733. invoking, effect of, and loss of, 299. in which application is first made, 294, is statutory and limited, 296, 2282. judgment without, is void, 296. jurisdictional facts, 297, 2282. letters must be issued in county of last residence, 372.' letters of administration must be granted in what county, 293. letters testamentary must be granted in what county, 293. life insurance proceeds, over proceeds, 311, 2288. limitations of, in proceedings to establish heirship, 1322. limited and statutory, in probate courts, 2282. loss of, after decree of distribution, 1376. no jurisdiction when, 309, 2288. nonresident, where deceased was a, 312, 2289. ' of appeal, 1789. ' of body of deceased, 312. of courts of equity, to decree specific performance of contract of decedent to convey real estate, 969. of courts to set aside their own decrees, 309, of equity, in guardianship matters, 212. of particular courts, 301-304, 2284-2286. of person alleged to be insane, 280. of person can be waived, 296. of probate courts, as to insane and other incompetents, 244. of probate courts, have none over what matters, 212. of probate courts, in habeas corpus cases for custody of children, 93. of probate courts, is statutory and limited, 2282. of probate courts, over estate where partnership existed, 1098. of probate courts, over trusts under will, 1439. of probate courts, power to appoint guardian, 164, 210, 211. of probate courts, to decree specific performance of contract of decedent to convey real estate, 969. of subject-matter can not be waived, 296. of superior court of county in which petition is first filed, 367, on accounting and settlement by guardian, 200. on appeal from order allowing claim against estate, 787. on application for final distribution, 1349. original and concurrent, 300, 2283, GENERAL INDEX. 2993 [References, are to pages.] JVRWDICnOHI— (Continued) over claims against estate of decedents, 699. over proceeds of life-insurance policy, 311, 2288. over the estate, when exercised, 293. over timber-culture claimant's claim, 311. over trustees under wills, 1429, 1432. power as between courts of co-equal authority, 385-387. probate courts as courts of record, 296. probate matters not to be confounded with actions or suits, 296. probate of foreign will, 1691. probate proceedings are not civil actions, 296. proceeds of life insurance policy, over, 311, 2288. prohibition to prevent further exercise of, 300. right of heirs to attack probate sales for want of, 1337. statutory and limited, of probate courts, 2282. superior court not to lose, by iinal distribution when, 1427. superior court proceeds upon principles of equity how, 296. superior courts of California, 301, 2284. superior courts of Washington, 301, 2284. to adjust disputed rights generally, 313, 2289. to administer a living person's estate, 313. to appoint administrator, does not depend upon what, 367. to appoint guardian, 164. to appoint guardian for insane is distinguishable from power to commit to hospitals, 286. to appoint new administrator, 366. to appoint special administrator, 366. to appropriate share of heir or devisee to payment of his debts, 312. to compel guardian to account, 213. to determine conflicting interests of heirs, 1344. to determine heirship, 1320. to enforce a trust, 315. to foreclose mortgage, 311. to hear appeal, what gives, 1786. to order property to escheat when, 311. to refuse letters of administration, ?66. to set apart probate homestead, 622. to try title, 314, 2289. until discharge of executor or administrator, 1424, want of, on accounting- and settlement, 1214. what fixes, for purpose of granting general letters, 366. what gives, to appellate court, 1787. where deceased was a nonresident, 312, 2289. where decedent died out of state leaving estate in more than one county, 334. where resident of one county dies in another, 366. 2994, GENERAL INDEX. [References are to pages.] JURISDICTION— fContintjed; !. where same court has jurisdiction in equity and in matters of pro- bate, 318. wills must be proved in what county, 293. writ of prohibition to prevent further proceedings, 300. JXTEY TEIAL form of demand for jury, on contest of probate of will, 1655. instructions to jury, on contest of probate of will, 1677. jury as judges of weight of evidence, on contest of probate of will, 1677. of issues in contest of will after probate, 1707. of issues of fact joined, 1490. of issues on accounting and settlement, 1229. of issues on contest of probate of will, 1669. verdict of jury on contest of probate of will, 1656. verdict of jury, when necessary before appointment of conservators, 251. JUSTIFICATION OF SURETIES form of, on additional bond of administrator, 418. form of, on administration bond, 418. i form of, on bond for distribution before final settlement, 1282. on bond of executor or administrator, 417. > on bond of guardian, 111. on guardian's bond for sale of real property, 148. KANSAS (See DisTKiCT coukt) rights of doweress in, 661. LAND LAWS of United States, homestead under can not be sold for benefit of creditors, 894. LAND OF MORMON CHURCH escheat of, to United States, 70, LAW 0¥ PLACE law at death controls subject of homesteads and rights of, sur- vivors, 598. what law governs as to descent of property, 58. LAW OF SITUS , governs trust under wills when, 1437, GENERAL INDEX. 2995 : [References are to pages.] LAW OF THE CASE (See Appeal) as to probate sales, what is, 954. where the court decrees specific performance of a contract for the conveyance of decedent's real estate, 972. LEASE (See Eeferences to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) and demise of ward's property, 193. of real estate by guardians, 194, 195. power of executor or administrator respecting, 1038. power of representative to alter or modify existing lease, 1002. property held under, may be sold when, 893. LEASE OF DECEDENT'S REAL ESTATE form of, 993. form of afiidavit of publication of order to show cause, 992. form of order authorizing lease, 993. form of order to show cause on petition to lease realty, 990, 2466. form of petition for leave to lease realty, 989. lease authorized when, 977, 2465. petition for order authorizing, must show what, 987, 2466. power of court to revoke or modify order authorizing, 1002, 2465, power of executor or administrator to lease, 1001, 2465. proceedings to obtain order to lease realty, 987, 2465. vaUdity of, 1001, 2465. LEASE OP INTESTATE'S PEOPEETY (See Eeferences to "L. E. A." notes) LEGACIES (See Eeferences to "Am. Dec." notes; Eeferences to "Am. St. Eep." notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Sections of the Civil Code of California, arranged according to subject-matter) abatement as between legacies of a class, 1583, accumulations, 1601, 2682. additional, 2672. ademption and abatement of, 1599, 2676. application of, to payment of debts, 1599, 2679, are due and deliverable when, 1585. bear interest from what time, 1586. bequest of interest or income, 1585. 2996 GENERAL INDEX. [References are to pages.] liEQAClES— (Continued) common-law, distinction abrogated, 1591. contribution among legatees, 872. cum onere, 2671. creditor as legatee, 1600, 2680. cumulative, what are, 1593, 2672. demonstrative, what are, 1593, 2672. executor may purchase, 1591. forfeiture of, 2696. form of order directing executor to pay a legatee his share of an estate, 1279. form of order that legatee, etc., refund money to pay debts, 1285. form of petition for order directing a legatee, etc., to refund money for payment of debts, 1284. general, what are, 1592, 2670. gift, when payable out of residuum, 1597, 2674. interest on, payment of, 1598, 2675. interest on, runs from what time, 1586. life estates, 1594, 2672. nature and designation of, 1581. notice of application for, 1274. on death of legatee, before testator, lineal descendants take estate, 1532. order for payment of, and extension of time, 1254. order of resort to property for payment of, 1582. outstanding title, life tenant purchasing, 1594, 2673. lapsed legacies and devises, 1608. legatee takes as tenant in common when, 1565. meeting of, 1590. payment of, bond by legatee, 1599, 2531. payment of legacies, 1597-1599, 2531. payment of, upon giving bonds, 1274, 2531. possession of legatees, 1584. preferred legatees, 1600. residuary, in general, 1595-1597, 2674. testator's express intention is paramount, 1586. to kindred are chargeable for payment of debts when, 1583. sale of decedent's property to pay, 911. specific, possession of, how obtained, 1583. specific, title to, passes by will, 1583. specific, what are, 1592, 2670. substitution of land for, election, 1591, substitutional, 2672. GENERAL INDEX. 2997 [References are to pages.] LEGATEE (See Beferenees to notes in "Am. & Eng. Ann. Cas. "; References to notes in "Kerr's Cal. Cye. Civ. Code"; Eeferenees to notes in "Prob. Rep. Ann.") LEGITIMACY (See References to "L. R. A." notes; Sections of the Civil Code of California, arranged according to subject-matter) LEGITIMATION (See References to "L. R. A." notes) LETTERS OF ADMINISTRATION (See References to "Am. Dec." notes; References to notes in "Am. & Eng. Ann. Cas."; Sections of the Code of Civil Procedure of California, arranged according to subject-niatter) appeal, consolidation of proceedings, 394. appeal, law of the case, 394. appeal, lies from what orders, 394. appeal, none from order appointing special administrator, 394. appeal, presumptions on, 394. appeal, right of, 393, 394, 2311. appeal, untenable objections on, 394. application for, by creditors, 369, 2301. application for, how made, 353. appointment, who are not entitled to, 389, 2309. citation to issue, when petition for is filed, 397. clerk to set day of hearing for, 356. collateral attack on appointment of administrator, 386-388, 2308. competency and disqualification in general, 390, 2310. competency to obtain, 390-393, 2310. construction of statute as to order of granting, 370. contest of application, 357, 381-383. contest of application, allegations on, 383. contest of application, in general, 381. contest of application, presumption on, 383. contest of application, proofs required, 383. contest of application, what questions are involved on, 382. contest of application, who may appear and contest, 382, 2307, day of hearing, to be set by clerk, 356. delay in applying for, effect of, 384, 2308. discretion of court in appointing applicant for, 349, 379. disqualification, by reason of minority, 390. disqualification, drunkenness, 391. disqualification, improvidence, 391. disqualification, in general, 390-893, 2310. 2998 GENERAL INDEX. itReferenees are to pages.] LETTERS OF ADMINISTEATION—fContinMed; ' disqualification, non-residents, 392, 2311. disqualification, want of integrity, 391, 2310. disqualification, want of understanding, 390. disqualification, what is not a, 390. disqualified judge not to act on, 475. ' 'effect of omitting seal, 347. effect of order granting, 388. equally entitled, where several, 379, 2306. evidence of notice of hearing of application for, 362. form of, 344. form of afiidavit of posting notice of hearing of application for, by any person over twenty-one years of age, 358. form of afiidavit of posting notice of hearing of application for, by deputy county clerk, 358. form of citation to show cause why, should not be revoked and rela- tive be appointed instead, 398. form of clerk's certificate that they have been recorded, 345. form of notice of hearing of petition for, 357. form of notice of hearing of petition to revokej 397. form of oath of administrator or administratrix, 345. form of objections to appointment of administrator, 359. form of order admitting will to probate and for, with the will an- nexed, 1662. form of order appointing administrator, 361. form of order revoking, and appointing a person having a prior right, 399. . form of order revoking, on failure to give further security, 428. form of order that application for letters and contest for letters be heard together, 360. form of petition by public administrator for, and contest of pro- bate of will, 1653. form of petition for, 353. form of petition for, by corporation, 355. form of petition for revocation of, in favor of one having a prior right, 396. form of petition for, to issue to one having a prior right, and to show cause, 397. form of petition for, to others than those entitled, 355. form of petition for, with the will annexed, 324. form of request for another's appointment, 364. form of, with the will annexed, 343. granting or refusing of administration, in general, 365, 2300. grant of, to new applicant, 362. hearing of contest of application for, 357. hearing of petition for revocation of, 399. GENERAL INDEX. 2999 [References are to pages.] LETTERS OF XDMlNiaTliATlON— (Continued) hearing of proofs, and issuance of, 361. heirs, request for special notice to, 2299. integrity, want of as disqualification, 391, 2310. jurisdiction of courts, 366, 2300. married woman may be administratrix, 351. may be granted when, 356. may issue to whom, upon request in writing, 363. must be granted in what county, 293. must be revoked when, 484. necessity of seal to letters, 346. newly-discovered evidence on petition for the revocation of, 401. non-residents, 377, 2306. notice and hearing of application for, 380, 2307. notice of application for, 356, 2299. on estate of minor, 368. order granting, efCect of, 388, 2309. order of appointment, 372, 2302. order of persons entitled -to administer estate, 348. partner not entitled to administer estate, 348. persons eqvially entitled to, preference of, 349, 2297. petition and contest for letters, 369-372. petition for, in general, 369. petition for, must be in writing, 353. petition for, must contain what, 353. preference, and issuance of, 374, 2304. preference of persons equally entitled to, 349, 2297. preliminary proof, 367. priority of right to, 374, 2304. prior rights of relatives entitle them to revoke prior letters, 400. procedure on contest of application for, 357. questions involved, 382, 2307. refusing or granting of administration in general, 365, 2300. request for special notice to heirs, 2299. revocation of, appeal, 406. revocation of, appointment is valid until set aside, 403. revocation of, burden of proof, 406. revocation of, for failure to comply with order requiring further security, 427. revocation of, for neglect to return inventory, 510. revocation of, how obtained, 395. revocation of, letters may be revoked when, 405, 2314. revocation of, letters not to be revoked when, 406, 2314. revocation of, petition for, 401. revocation of, province of court, 401. revocation of, statutory priority, i402, 2313. 3000 GENERAL INDEX. [References are to pages.] LETTERS OF ABMINISTTS.A.TION— (Continued) revocation of, what operates as, 403. revocation of, what orders are appealable, 406. revocation of, when will is subsequently found, 468. revocation of, who can not obtain, 405, 2314. revocation of, who may obtain, 403. right of nonresident to, 377. right of public administrator to, 1505-1508. right to nominate, 375-379, 2305. special notice to heirs, 2299. statement of facts and application for, 370, 2301. sufficiency of petition for, 371. to be granted in ease of lost or destroyed will when, 1718. to be granted in what court and county, 372, 2302. to be recorded, 409. to others than those entitled, 375-379, 2305. transcript of court minutes of appointment as evidence, 473. validity of, 385. validity of appointment, 385. vesting of appointee with office, 388, 2309. waiver of right to, 383, 2308. what proofs must be made before granting, 363. what questions are involved, 382, 2307. where several are equally entitled, 379, 2306. who are entitled to, 373, 2302. who are incompetent to act as administrators, 350. who are not entitled to appointment, 389, 2309. who may appear and contest, 382, 2307. who must be appointed, when minor or incompetent is entitled to, 350. LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) appeal from order as to, 340. appellate court will not order, to issue when, 340. appointment of administrator, how to be made, 336. appointment of executor by court, 335. authority of administrator with will annexed, 332. bond of administrator, affords what protection, 337. clerk's certificate that they have been recorded, 344. discretion of court to appoint administrator with will annexed, 337. effect of failure to apply for leters or to qualify, 335-340, 2294. foreign will, right to letters in case of, 338, 2296. form of, 343. form of clerk's certificate that they have been recorded, 344. GENERAL INDEX. 3001 [fteferences are to pages.] LETTERS OF ADMINISTBATION WITH THE WILL ANNEXED-^ (Continued) form of oath of administrator with the will annexed, 343. form of order admitting will to probate and for, 326, 1662. form of order appointing administrator de bonis non, 330. form of order for, 326. form of petition for, 324. form of petition for letters, etc., upon estate de bonis non, 329. granting of, how not limited, 336. in general, 336. jurisdiction of courts, 334. may be revoked when, 330. must be granted when, 330. must be issued how when no executor is named in will, 326. must be signed by clerk and have a seal, 332. objections to appointment of administrator with will annexed, 335. order of appointment, 339. preference, in appointment of administrator with will annexed, 337. right of nominee to appointment as administrator with will an- nexed, 337. right of public administrator to appointment, 337. right to letters in ease of foreign will, 338, 2295, 2296. right to nominate administrator with will annexed, 337. to be issued when, 339, 2296. subsequently discovered property, 339, 2296. where executor appointed can not or will not act, 337, 2294. who are not entitled to, 340, 2296. who are not incompetent to act as administrator with will annexed, 336. LETTERS OF GUARDIANSHIP (See Guardian and waed; References to notes in "Kerr's Cal. Cyc. Civ. Code") certificate of clerk as to copy of, 114. form of, 113. to be recorded, 115. LETTERS TESTAMENTARY (See References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas."; Sections of the Code of Civil Procedure of California, arranged according to subject-matter; Wills, for- eign, probate of) acts of a portion of executors are valid when, 331. appeal from orders' as to, 340. application by foreign executor, 333, 2293. appointment of executor by court, 335. 3002j; GENERAL INDEX. [References are to pages.] LETTERS TESTAMENTAEY— fConWriMed; corporations as executors, 322. disqualified judge not to act on, 475. effect of failure to apply for letters, or to qualify, 335, 2294. executor according to the tenor, 1586. executor as representative of estate, 333. executor forfeits right to when, 1617. executor of an executor, 328. form of, 341. form of clerk's certificate that they have been recorded, 342. form of forfeiture of executor's right to, 1617. form of objections to issuance of, 327. form of order admitting will to probate and for, with or without bond, 1660, 1661. form of renunciation, by person named in will, of right to, 1616. form, time fixed by clerk for hearing probate of will and petition for, 1622. interested parties may file objections, 327. issue only as consequence of probate of will, 333. jurisdiction of courts as to, 334. letters on proved will must issue to whom, 322. married woman may be executrix, 328. must be granted in what county, 293. must be revoked when, 484. naming of executor is not part of will, 333. objections to appointment of executor, 335. order admitting will to probate, gives right to, 1642. right of executor named to act, 333. right of executor to renounce his trust, 333. right of testator to select executor, 332. to be issued on lost or destroyed will when, 1718. to be recorded, 409. transcript of court minutes of appointment of executor as evi- dence, 473. validity and effect of appointment of executor, 340. when no executor is named in will, 326. where person is absent from state, or a minor, 330. who are incompetent as execu{ors, 323. LEVY (-See, References to "L. R. A." notes) LEVY OE ATTACHMENT (See References to notes in "Am. & Eng. Ann. Cas.") GBNERAIj INDEX, i 3003 [References are to pages.] LIABILITY (See CoLJLATERAL-lNHERiTANCE TAX; Beferences to "Am. Dec." notes; References to "Am. St. Eep. " notes; Eeferences to "L. K. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas. "; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) of deceased guardian, how determined, 223. of estate of insane person for his support, 287. of executor or administrator, for attorney's fee, 1149. of executor or administrator, for misconduct in sale of decedent's property, 879. of executor or administrator, in general, 1116-1132. of executor or administrator, instances of, 1117-1132. of guardian for expenses incurred in performance of his duties,, 216. of guardian for mingling trust funds, 216. of guardian for taxes, 216. of guardian for unauthorized acts done by him, 215. of guardian, in general, 215. of guardian of insane or incompetent person, 249-251. of guardian upon his own contracts for benefit of ward, 216. of outgoing executor or administrator, 470. of sureties on bonds of guardian, additional and substituted, for past defaults, 225. of ward, 218, 221. on bond of executor or administrator, 434-452. on bond of guardian, 168, 221. personal, of representative, 1110, 1116-1132. LIABILITY OF BENEFICIARIES (See Eeferences to notes in "Kerr's Cal. Cye. Civ. Code") LIABILITY OF ESTATE for debts, 871. LIEN application of purchase-money, for property held under, 896. contract to pay family allowance is not a, upon family home, 580. effect on, of setting apart property less in value than^ fifteen fhun- dred dollars, 585. , extinguishment of, on setting apart ante-mortem homestead, 6J7. holder of -lien may purchase land, receipt as payment, 878. -, on real property of estate, what judgment is not a, 686. , power of executor or administrator as to paying off, 1091. probate homestead is subject to ^jnortgage, 638. Probate Sup. 62. 3004 GENERAL INDEX. [References are to pages.] LIEN — (Continued) probate sale of decedent's property under, 896. sales of land under mortgage or lien, 877. subsisting, on homestead to be paid by solvent estate, 590. LIFE ESTATE construction of statute relative to disposition of, 1495, 2583. disposition of, on owner's death, in certain cases, 1469. form of decree declaring, terminated, 1472. form of notice of petition for termination of, and of time and place for hearing same, 1471. form of petition for decree of termination of, 1470. power of devisee to sell, 1595, 2673. residuary where, is specifically bequeathed, 1597. rule in Shelly 's case, abrogated in Idaho, 2674. tenant purchasing outstanding title, 1594, 2673, vesting of, 1594, 2672. LITE INSUEANCB action by executor or administrator for, 1058. LIFE INSURANCE POLICY jurisdiction of probate court over proeeeds of, 311. LIMITATION upon right of testamentary disposition, as to certain persons, 1537. LIMITATION OE ACTIONS (See Claims against estate; Eeferences to "Am. Deo." notes; References to "L. E. A." notes) against executor or administrator, 1086. against insane or incompetent person, 258, 2341. by executor or administrator, 1066. by heirs, 1335. by persons claiming escheated estates, '66, 73. claims barred by statute of limitations, not to be allowed, 682. for the recovery of property sold by guardian, 160, 2260. for vacating probate sale, 943. for vacating sales, etc., 880. in action against guardian for fraud, 227, 2260. in matters of guardianship, 226, 2260. on administration bond, 451. on foreclosure of mortgages against estates of decedents, 775. on foreclosure of mortgage in case of death of mortgagor, 778, 779. on guardian's bond, 160, 225. rejected claims to be sued for within three months, 681. GENERAL INDEX. 3005 tReferenoes are to pages.] LIMITATION OF ACTIO'SS— (Continued) statute of limitations, how affected by death of one against whom right of action exists, 767. to contest will after probate, 1704, 1705. to foreclose mortgage upon homestead, 782. to show that real property was community property, or to recover it, 1730. what is not included in time of limitation, 683, 2341. LIMITATION or TIME (See References to "L. E. A. " notes) LIVING PEESON'S ESTATE no power to administer on, 313. power to administer, 518. LOSS liability of representative for loss through neglect, 1124. of right to probate homestead, 641. representative not to profit or lose by estate, 1111, 1130. LOST OE DESTEOYED WILL (See Eeferences to "Am. St. Rep." notes; References to "L. E. A." notes; Wills, probate of lost or destroyed) "L. R. A." NOTES (See References to "L. E. A. " notes) LUNATICS (See Commitment and discharge or insane persons; Guardian- ship OP INSANE PERSONS AND OTHER INCOMPETENTS; INSANE PER- SONS; Incompetent persons; Eeferences to "L. E. A." notes; Eeferences to notes in Heuning's General Laws) lunacy proceedings, collateral attack on, for want of notice to the lunatic, 249. lunacy proceedings, necessity of notice, 248. notice required before commitment to asylum, 287. power of guardian or committee to bind incompetent person or his estate by contract, 250. MAIL service by, how made, 1806. MAINTENANCE of insane or incompetent person, 249. of insane person, 287. of ward, 171. 3006; GENERAL INDEX. [References are to pages.] MAINTENANCE OP WAED (See Eeferenees to "L. K. A." notes) MANAGEMENT OF ESTATE (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) advances by administrator, 1089. advice and instruction to executors or administrators, 1096. continuing business of decedent, administrator's report and account, 1095. continuing business of decedent, exception to rule, 1094. continuing business of decedent, individual liability, 1094. continuing business of decedent, in general, 1093. continuing business of decedent, liability created by court, 1095. control of ward's estate by guardian, 170-180. discovery of assets, 1089. effect of chattel mortgage, 1091. in general, 1088. investment of funds, 1090. paying off liens, redemption, 1091. questions relating to mortgages, 1092. MANDATE to compel administrator -to execute conveyance, 948. to restore contest of probate of will, 1664. MARKS IN WILLS (See Eeferences to "L. R. A." notes) MARRIAGE (See References to "L. R. A." notes; Referprces to notes in "Kerr's Cal. Cye. Civ. Code"; Wills, revocation of) children born after dissolution of, 1800. children of annulled, 1801. of minor, 2226. revocation of will by, 1552. MARRIED WOMAN may be administratrix, 351. may be executrix, 328. MARSHALING OF ASSETS for payment of debts, 1264. MATERNITY - ' | (See References to "L. E. A." notes) GENERAL INDEX. 3007 [References are to pages.] MATTERS or PROBATE jurisdiction of, 318-320. jurisdiction of, includes what, 1353. proceeding for determination of heirship is embraced -within, 1321. MEDICAL EXAMINATION of person charged with insanity, 273. MEDICAL EXAMINERS of alleged insane person, certificate of, 279. MEMORANDUM form of, by clerk, fixing time for hearing for . partial, distribution, J278. ^,„ ^ form of, by clerk, fixing time for heariiig of final account and peti- tion for distribution, 1183. form of, by clerk fixing time for hearing petitiop for final distribu tion, 1312. MENTAL CAPACITY (See References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas.") MERE POSSIBILITY is not an interest, 1804. MINES (See Sale op mines; Sections of the Code of Civil Procedure of Cali- fornia, arranged according to subject-matter) may be sold when, 893. MINUTES (See Peobate practice and peoceduee) MINING CLAIM (See References to "L. K. A." notes) MINORS (See Childeen; Infant; References to "Am. St. Rep." notes; Ref- ences to notes in "Kerr's Cal. Cye. Code Civ. Proe.") application of income to support of, 1802. if entitled to letters, who must be appointed, 350. lease of real estate, 2465. letters of administration on estate of, 368. marriage of, 2226. 3008 GENERAL INDEX. [References are to pages.] UmonS— (Continued) proceedings to mortgage or lease the real property of, 977-994, 2465. validity of letters granted to, 385. who are, 1799. MISJOINDEE in action for specific performance of contract to devise property, none when, 976. MISNOMEE IN GIFT (See Eeferenees to notes in "Prob. Eep. Ann.") MISSING PEESON (See Estate of missing person; Eeferenees to "L. R. A." notes; Eeferenees to notes in ' ' Am. & Eng. Ann. Gas. ' ' ; Sections of the Code of Civil Procedure of California, arranged according to sub- ject-matter) MISTAKE effect of, in petition for sale of decedent's property, 899. in settlement of account, equitable relief against, 1236. MISTEIAL of contest of probate of will, 1678. MONEY investment of, by trustee, 1805. MONEYS OF ESTATE appraisement of, not necessary, 508. can not be given in lieu of ante-mortem homestead, 605. can not be given in lieu of probate homestead, 634. inventory of, must be made and returned, 508. pending settlement, court may order, to be invested, 1020. MONTANA (See District court) rights of doweress in, 663, MONUMENTS (See Payment op debts) MOEPHINISM (See Eeferenees to "L. E A." notes) , GENERAL INDEX. 3009 [References are to pages.] MORTGAGE (See References to notes in Kerr's Cal. Cyc. Code Civ. Proe. "; Sec- tions of the Code of Civil Procedure of California, arranged ac- cording to subject-matter) action against executor or administrator on, 1083. action by executor or administrator on, 1058. against estates of decedents, limitation of actions on foreclosure of, 775. application of purchase-money for mortgaged property, 896. by heirs and devisees pending administration, 1343. by insane person, 288. executed by decedent, who are necessary parties to action of fore- closure, 742. foreclosure of, as claims against estates, 768-775. form of, of homestead by spouse of insane person, 650. form of petition for leave to, homestead of insane spouse, 647. has preference out of proceeds of mortgaged property, 1270. holder of, may purchase land, receipt as payment, 878. is not a lien on rents, 1270. jurisdiction of probate court to foreclose, 311. not a revocation of will, 1528. of homesteads of decedents, 780-782. on estates of decedents, foreclosure of, in case of death of mort' gagor, 776-780. order authorizing is appealable, 1782, 2465. payment of mortgage debt of decedent, 1269. power of executor or administrator respecting, 1038. preference of mortgage debt, how limited, 1270. probate court has no power to foreclose, 310. probate homestead is subject to, 638. probate sale of decedent's mortgaged property, 896. "proceeds" do not include rents of property when, 1270. questions in management of estate relating to, 1092, 2495. sales of land under mortgage or lien, 877. to be given for deferred payments on guardian's sale, 149. MORTGAGE OF DECEDENT'S REAL ESTATE authority to mortgage, 996, 2465. collateral attack upon order authorizing, 1000. construction and validity of statute, 995. foreclosure of, 1000. form of affidavit of publication of order to show cause, 992. form of mortgage of decedent's real estate, 986. form of order authorizing mortgage, 985. form of order to show cause on petition to mortgage, 984. form of petition for leave to mortgage realty, 983. 3010 GENERAL INDEX. ; [References are to pages.] MORTGAGE OF DECEDENT'S REAL -ESTATE— (Continued) jurisdictional facts, 996. ' may be authorized when, 977, 2465. particular purpose of, must be shown, 978. petition for order must show what, 978, 2465. presumptions in examining record of mortgage authorizing sale of decedent's property, 999. procedure and practice under order authorizing, 1000, proceedings to obtain order- to mortgage, 978. purpose to be shown, 997. review on appeal of order authorizing, 1000. right of creditors to sell and pay mortgage, 999. sufficiency of petition, 997. title of purchaser under foreclosure of, 1000. validity of mortgage, 997. MORTGAGE OF WARD'S PROPERTY authority, to make, 194. guardian of insane ward is not authorized to make, 249. of real estate by guardians, 194, 195. petition as foundation of jurisdiction for, 194. revival and foreclosure of former mortgage, 196. validity of, 196. validity of order authorizing, 196. MOTION for new trial, after granting of family allowance, 581. MUNICIPAL CORPORATION (See References to notes in "Prob. Rep. Ann.") MURDERER, SUCCESSION BY (See- References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas.") MUTILATION OF WILL (See References to "L. R. A." notes) MUTUAL MISTAKE in sales of decedent's property, 921. MUTUAL OR CONJOINT WILL (See References to notes in "Kerr's Cal. Cyc. Civ. Code"; Wills, classes of) GENERAL INDEX. 3011 [References are to pages.] NATURALIZATION" (See References to "L. R. A." notes) NECESSITY OF ADMINISTRATION (See References to "L. E. A." notes) NECESSITY OF BOND BY GUARDIAN (See References to "L. R. A." notes) NEGLIGENCE (See References to "Am. Dee." notes; References to "L. E. A." notes) NEGLIGENT KILLING (See References to "L. E. A." notes) NEWLY DISCOVERED EVIDENCE on petition for the revocation of letters of administration, 401. NEW TRIAL appeal from order denying, 1779. motion for, after granting of family allowance, 581. motion for, in proceedings to determine heirship, 1299. of contest of probate of wills should be granted when, 1678. ■ what provisions of code apply to, in probate proceedings, 1464, 1465. NEXT FRIEND (See References to notes in "Am. & Eng. Ann. Cas. ") "NEXT OF KIN" (See References to "L. R. A." notes) NINETY PER CENT of appraised value must be offered at private sale of land, 847. NOMINATE right to, for letters of administration, 375-379. NONCLAIM (See References to notes in "Am. & Eng. Ann. Cas.") special statutes of limitation, 747. NONEXPERTS admissibility of testimony of, on contest of probate of will, 1674. 3012 GENERAL INDEX. [References are to pages.] NONINTERVENTION WILLS (See Wills, classes of) NONLIABILITY of representatives, instances of, 1125. NONRESIDENT (See Agents foe absent, interested parties; Guakdian and ward; References to "Am. St. Rep." notes; References to "L. R. A." notes ; References to notes in ' ' Am. & Eng. Ann. Cas. ' ' ; Refer- ences to liotes in "Kerr's Cal; Cyc. Code Civ. Proc"; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) distribution to, 1363. distribution where decedent was a, 1309. escheat of property of nonresident alien, 71. guardian and ward, 151-155, 196-199. guardian, how far recognized here, 196. incapacity of, to nominate administrator, 877. jurisdiction of court where deceased was a, 312. jurisdiction to grant original probate of will of, 1634. removal of, executor for absence, 489. right of nonresident alien to inherit, 57. right of, to appoint nominee for letters of administration with the will annexed, 337. right of, to letters of administration, 377. surviving husband or wife of deceased person, though incompetent to serve on account of nonresidence, has right to nominate, 378. NONStriT on application for probate of will, 2715. on application to revoke probate of will, 1709. NOTARY'S CERTIFICATE form of, of presentation of claim, 680. NOTES (See References to "Am. Rep." notes; References to "L. R. A." notes; References to notes in Ilenning's General Laws; Refer- ences to notes in "Kerr's Cal. Cyc. Code Civ. Proe. "; References to notes in "Prob. Rep. Ann.") NOTES IN THIS WORK accounting and settlement of accounts by executors and administra- tors, 1197-1248. antemortem homesteads, 594-619. GENERAL INDEX. 3013 [References are to pages.] NOTES IN THIS y^OBK— (Continued) appeal, 1776-1796. bonds of executors and administrators, and liability thereon, 434-452. claims against estate, 693-788. collateral-inheritance taxes, 1762-1772. commitment and discharge of insane persons, 286-292. community property and separate property, 1732-1740. contest of probate of wills, 1663-1683. contest of wills after probate, 1703-1712. construction and interpretation of wills, 1566-1579. discharge of executor or administrator, 1423-1426. disqualification of judge and transfer of proceedings, 480. dower and courtesy, 660-664. effects of decedents, inventory, appraisement, and possession of es- tate, 516-535. embezzlement of property of estate, 542-544. escheat, 68-74. establishment of heirship, rights and liabilities of heirs, and distri- bution, 1319-1383. estates of missing persons, 1743-1744. execution of wills, revocation, classes, 1535-1553. executory contracts of deceased, specific pei'formance of, 968-976. family allowance, 563-587. guardian and ward, 163-229. guardianship of insane persons and other incompetents, 243-260. ' Tiabeas corpus for custody of children, 92-98. ' homesteads, in general, 594-645. homesteads of insane persons, 651. incapacity of representative to act, 473, 474, ' jurisdiction of courts, 295-320. law of adoption, 11-21. law of succession, 38-58. letters of administration, 364-394. letters testamentary, and of administration with the will ■ annexed, " 332-340.' liabilities and compensation of executors aind administrators, attor- neys' fees,' 1116-1158. minors and their custody-— guardians, commitment, and habeas corpus, 85-98. ' mortgages atnd leases of estates of decedents, 995-1002. oath, and seal to letters, 346, 347. partial distribution, 1286-1294. partition in connection with distribution, 1402-1405. payment of debts,' 1256-1272. 3014 GENERAL INDEX. [References are to pages.] NOTES IN THIS WOUK— (Continued) • ' n powers and duties of executors and administTators, actions by, and against representatives, management of estates, and partuer- ship estates, 1024-1108. probate homesteads, 619-645. probate of foreign wills, 1691,- 1692. probate of lost or destroyed wills, 1721-1723, probate of nuncupative wills, 1728. probate of wills, 1632-1643. probate practice and procedure, 1477-1496. probate sales, 884-954. property passing by will, vesting of interest, 15S8-'1610. public administrators, 1504-1512. removal, suspension, and resignation of executors or administrators, 489-500. revocation of letters, 401-407. special administrators, 460-667. spendthrifts, 267. . s testimony of parties, or persons interested, for or against representa- tives, survivors, or successors in title or interest of persons deceased or incompetent, 1835-1861. < trusts under wills, testamentary trustees, and distribution to trus. tees, 1433-1454. NOTICE (See COLLATEKAL-INpEBITANCB TAX ; PaKTITION • IN CONN-'CT'ON WITH DISTRIBUTION; PROBATE PRACTICE AND PROCEDURE; Kefeiences to "L. E. A." notes) appointment of guardian without, is void, 165. decree of distribution to be mad,e after, 1367. executor or administrator not to be rem.oved without, 497. form of affidavit of posting, 358, 1809. form of affidavit of posting, of hearing of petition for final distri- bution, 1313. form of affidavit of posting, of petition for assignment of estate for use and support of family, 561. form of affidavit of posting, of settlement , of account, 1195. form of, of administrator's sale of personal property, 807. form of, of application for letters of guardianship, 102. form of, of application for order to set aside all of decedent's es- tate for the benefit of his. family, 560. form of, of application for share of estate before final settlement, 1277. form of, of application to restore destroyed records, J)y order of court, and of time and place fixed for hearing, in case of entire destruction, 1816. GENERAL INDEX. 3015 [References are to pages.] NOTICE— (Continued) form of, of application to restore destroyed records, hj order of court, and of time and place fixed for hearing, in case of partial destruction, 1817. form of, of guardian's sale of incompetent's real estate at private sale, 237. form of, of guardian's sale of real estate, at private sale, 142. form of, of guardian's sale of real estate, at public auction, 142. form of, of hearing of petition for final distribution, 1312. form of, of hearing of petition for letters of administration, 357. form of, of hearing of petition to revoke letters, and for letters of administration to issue to one having a prior right, and to show cause, 397. form of, of hearing on report of appraisers as to homestead, 592. form of, of hearing petition for family allowance, 555. form of, of motion to vacate sale of real estate, and for a resale thereof, 860. form of, of sale of real estate at private sale, 845. form of, of sale of real estate, by guardian of incompetent person, 236. form of, of settlement of account, 1175. form of, of settlement of final account and distribution, 1184. form of, of summary administration, 559. form of, of time and place of hearing application for setting aside entire estate for use and support of family, 561. form of, of time and place set for hearing petition for probate of foreign vrill, and for the issuance of letters testamentary thereon, 1687. form of order establishing service of, to determine heirship, 1303. form of order for sale of real estate at private sale on short, 844. form of order requiring, of application for restoration of records, and of the setting of said application for hearing, 1815. form of order setting time for hearing report of appraisers of homestead and prescribing, 592. form of order to show cause and directing, to absconding adminis- trator or executor, 488. form of proof of personal service of notice of time appointed for probate of will, 1625. form of, to creditors, 559. form of, upon filing of petition to ascertain rights as heirs, 1301. hearing proof of will, after proof of service of, 1626. is imparted by recorded decree or order from date of filing, 1459. lunatic is entitled to, before appointment of guardian, 247. must be given before appointment of guardian for incompetent, 247, must be given to suspended executor or administrator, 497. must precede decree for distribution, 1309. 3016 GENERAL INDEX. [References are to pages.] NOTICE— fContinuedJ necessary before appointment of conservators, 251. of allowance of attorney's fee of executor or administrator, neces- sity of, 1148. of application for legacies, 1274. of application for letters of administration, day of hearing to be set by clerk, 356. of application for letters of administration, evidence of, 362. of application for letters of guardianship, 102. of application for order to sell or mortgage homestead of insane person, 648. of hearing of petition for letters of administration must be given, 380. of letters of administration, what is required, 380. of order to show cause why property of decedent should not be sold need not be aga,in given on a second hearing after reversal of order on appeal, 915. of partial distribution to be given, 1288. of petition for probate of will, how given, 1621. of postponement of sale of decedent's property, 868. of private sale of real estate, 843. of sale of land at public auction, 841. of sale of real estate at public auction, 842. of settlement of account, how to be given, 1200. of time and place of hearing petition in proceeding against alleged insane or other incompetent person, 231. on application for final distribution, 1347. personal, when to be given by citation, 1462. required, before commitment to an asylum, 286. required of private sale of real estate, 843. requirements as to, on partition in connection with distribution, 1403, 1405. to absconding executor or administrator, 488. to alleged insane or incompetent person, in guardianship proceed- ings, validity of, 247. to alleged insane person to appear before appointment of guardian, 246. to be served, on relatives of alleged insane person, 269. to creditors, not necessary, before setting apart estate less in value than fifteen hundred dollars, 584. to executor or administrator who conceals himself, 488. to heirs and named executors of time appointed for probate of will, 1623. to incompetent, by publication, before appointment of guardian, 248. to next of kin of guardian's sale, how given, 139, GENERAL INDEX. 3017 [References are to pages.] NOTICE— ('ConfinMedj to public administrator, by civil oflficer, of waste, 1499. to spendthrift of guardianship proceedings, 262. what, required before appointment of guardian, 165. NOTICE OP APPEAL (See Appeal) from order made on accounting and settlement, 1239. NOTICE OF APPLICATION for probate of will, 1636. NOTICE OE HEABING form of notice of petition for termination of life estate, and of time and place for hearing same, 1471. form of order for, of petition, 1470. form of, of petition for leave to invest moneys of estate, 1022. form of, of petition for sale of personal property at private sale, 806. form of, return of sale of real estate, 854. of order to show cause why decedent's property should not be sold, 916. of petition for conveyance or transfer of property in case of death, 956. of return of proceedings for sale of real estate, 848. NOTICE OF SALE (See Sale in general) NOTICE OF SETTLEMENT by representative, must be given, 1173. proof of, of accounts, 1194. when settlement is final, notice must so state, 1175. NOTICE TO CEEDITOES (See Claims against estate) accounting within thirty days after time for, has expired, 1165. copy and proof of notice to be filed, and order made, 670. decree establishing, form of, 672. form of, 669. form of affidavit of posting notice of time of hearing of applica- tion for decree establishing, 672. form of aflidavit of publication of, 671. form of affidavit that creditor had no notice, 675. form of decree establishing, 672. 3018 GENERAL INDEX. [References are to pages.] NOTICE TO CHEDITORS— (Continued) form of order fixing time of hearing on application for decree establishing, 671. form of order for publication of, 6G9. form of order of removal for neglecting to give, 690. what time must be expressed In, 669. NULLITY decree of final distribution is a when, 1368. NUNC PRO TUNC OBDEE in proceeding to compel specific performance of contract of decedent to convey real estate, 972. of sale, 919. NUNCUPATIVB WILL (See Eeferences to "L. K. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas. "; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Eeferences to notes in "Kerr's Cal. Cyc. Code Civ. Proc. "; Wills, execution of; Wills, classes of; Wills, in general; Wills, nuncupative, probate of) OATH (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) and bond of public administrator, 1498, 1508. executor is excused from taking when, 346. executor or administrator to take, 409. form of, of administrator, as to property, 506. form of, of administrator or administratrix, 345. form of, of administrator with the will annexed, 343. form of, of appraisers to appraise property, 505. form of, of commissioners to admeasure dower, 657. form of, of executor or executrix, 342. form of, to be indorsed on commission of commissioners appointed to make partition, 1395. form of, to bill of appraisers, 507. necessity of qualifying according to law, 346. of appraisers of decedent's estate, 503. of commissioners to set off dower, and return of proceedings, 653. of guardian, 113. public administrator to administer, 1503. special administrator must take, 457. to inventory, signing and indorsing, 510, GENEEAL INDEX. 3019 [References are to pages.] 0BJECTI0IT8 (See Accounting and settlement) form of, to appointment of administrator, 359. form of, to confirmation of sale of real estate, 857. form of, to issuance of letters testamentary, 327. form of, to order of sale of real estate, 831. form of, to sale of decedent's property, 795. form of, to sale of personal property, 806. to appointment of executor by court, 335. to continuation of family allowance, 570. to issuance of letters, interested parties may file, 327. to confirmation of sale of property, 856. to confirmation of sale or conveyance, 945. to distribution, in general, 1357. to final distribution, what are untenable, 1357. to order directing specific performance by administrator, of dece- dent's contract to convey real estate, 960. in writing, to account of executor or administrator, 1164. OBLIGATION OF ANCESTOE (See Kefereuces to "L. E. A." notes) OFFICIAL BOND excuses filing of bond on appeal, when, 1788. OFFICEE OF COEPOEATION competency of, as a witness to a transaction with a deceased per- son, 1849. OFFICEES payment of fees of, out of assets in hands of public administrator, 1503. OLOGEAPHIC WILLS (See Holographic wills; Wills, execution op; Wills, classes op; Wills, pkobate op) OMISSION effect of, in petition for sale of decedent's property, 899. in proceedings to lease decedent's real estate, effect of, 989. OMITTED CHILD (See Eeferences to "Am. St. Eep." notes; Eeferences to notes in "Am. & Eng. Ann. Gas.") Probate Sup. 53. 3020 GENERAL INDEX. [References are to pages.] OPPOSITION (See Wills, contest op peobatb op) form of, to probate of nuncupative will, 1726. to application for sale of decedent's property, 907. OPINION EVIDENCE (See References to notes in "Am. & Eng. Ann. Cas.") ORDER (See Decree; Family allowance; Okder confirming sale; Okdeb OP commitment; Order op sale; Order to show cause; Pro- bate practice and procedure; References to "Am. St. Rep." notes; Sections of the Code of Civil Procedure of California, arranged according to subject-matter; Wills, probate of) and decrees to be entered in minutes, 1456. appointing guardian, court may insert conditions in, 114. appointing guardian for insane or other incompetent, appeal from, 259. appointing guardian for insane or other incompetent, review of, 259. appointing guardian, how entered, 161. appointing guardian may be dual, 168. authorizing lease of decedent's real estate, 993. authorizing money to be borrowed on mortgage of decedent's real estate, 980. authorizing mortgage of decedent 's real estate, 985. directing conveyance or transfer of property to be made in case of death when, 961. failure of executor or administrator to comply with order to give further security, revocation of letters for, 427. fixing time of hearing on application for decree establishing notice to creditors, 671. for attachment, for neglecting to return account of sales, 882. for partial distribution may be made when, 1290. for payment of debts, 1265-1267. for payment of debts and final discharge, 1249. for payment of dividends on accounting and settlement, 1201. for payment of legacies, and extension of time, 1254. for publication of notice to creditors, 669. for sale of ward's land, essentials of, 184. form of, accepting resignation of testamentary trustee, 1432. form of, admitting foreign will to probate and for letters, with or without bond, 1689. form of, admitting will to probate, and for letters of administra tion with the will annexed, 326, 1662. form of, admitting will to probate and for letters testamentary, with or without bond, 1660, 1661. GENERAL INDEX. 3021 [References are to pages.] O^D'EB— (Continued) form of alternative, that survivirg partner account to administra- tor or show cause, 1010. form of, appointing administrator, 361. form of, appointing administrator, de bonis non, 330. form of, appointing agent to take possession for nonresident dis- tributee, 1411. form of, appointing appraiser, 504. form of, appointing appraiser of property subject to collateral-in- heritance tax, 1748. form of, appointing appraiser of property subject to collateral-in- heritance tax, Colorado, 1749. form of, appointing attorney, 1466. form of, appointing commissioners to make partition, 1394. form of, appointing day of settlement of account, 1174. form of, appointing day for hearing petition for distribution and settlement of final account, 1184. form of, appointing day for hearing petition foi guardianship and directing notice to be given, 102, 103. form of, appointing guardian, 104. form of, appointing guardian for minors, 655. form of, appointing guardian of incompetent person, 234. form of, appointing referee of administrator's account and ad- journing settlement, 1192. form of, appointing referee of guardian's ascount and adjourning settlement, 132. form of, appointing special administrator, 455. form of, appointing time for hearing petition for specific psrform- ance of contract to convey, 959. form of, appointing trustee under will, 1431. form of, approving administrator's agreement to compromise with debtor, 1014. form of, approving report of appraiser and fixing amount of col- lateral-inheritance tax, Colorado, 1754. form of, assigning entire estate for use and support of family of deceased, 562. form of, authorizing mortgage of decedent's real estate, 985. form of certificate of service of certified copy of order for hearing and examination of alleged insane person, 272. form of, confirming commissioners' report and directing partition, 1398. form of, confirming report of commissioners, on partition in con- nection with distribution, and assigning the whole estate to one, 1396. form of, confirming report of commissioners to admeasure dower, 659. 3022 GENERAL INDEX. tReferences are to pages.] OnD'Sn— (Continued) form of, oonfirming sale of property by agent for nonresident dis- tributee, 1419. form of, continuing hearing, 1457. form of, directing executor to pay a legatee his share of an estate, 1279. form of, directing investment of moneys of estate in United States bonds, 1023. form of, directing notice to show cause why letters should not be revoked for neglecting to return inventory, 511. form of, directing payment of monthly allowance for support of feeble-minded, 239. form of, directing publication of notice of petition for leave to invest, 1022. form of, directing sale, by agent, of property of nonresident dis- tributee, 1418. form of, establishing service of notice to determine heirship, 1303. form of, fixing collateral-inheritance tax, 1755. form of, fixing hearing on petition for proving foreign will, etc., and application for letters of administration with the wUl annexed, 1687. form of, fixing time for hearing, 1457. form of, fixing time for hearing and examination of alleged insane person, 271. form of, fixing time for hearing on return of sale, 853. form of, fixing time of hearing on petition for removal of guard- ianship proceeding, 121. form of, for admeasurement of dower, 656. form of, for attachment to compel surviving partner to render an account, 1011. form of, for citation, on petition of surety to be released, 430. form of, for citation to administrator or executor when sureties are insufficient, 424. form of, for citation to administrator to render aceount, 1169. form of, for conveyance of land sold by decedent, 962. form of, for conveyance of laud sold by decedent, conditional, 963. form of, for notice of application for partition on distribution, 1392. form of, for notice of hearing of petition, 1470. form of, fbr notice of hearing of petition for guardianship of in- competent person, 234. form of, for notice of hearing on petition for dower, 654. form of, for partial distribution, 1280. form of, for partial distribution, without bond, 1282. form of, for removal of guardianship proceedings, 121, form of, for resale of real estate, 861. GENERAL INDEX. 3023 [References are to pages.] ' OTlTi^'R— (Continued) form of, for sale of property by guardian, 141, form of, making provision for support of family until return of inventory, 547. form of, of adoption, 8. form of, of allowance for expenses of education and maintenance, 116. form of, of reference to court commissioner to examine and report on qualifications of sureties, 1813. form of, of removal for neglect to file inventory, 511. form of, of sale of estate and distribution of proceeds, 1401. form of, of sale of personal property in possession of agent for nonresident distributee, 1414. form of, on application to revoke probate of will, that a citation issue, 1698. form of, permitting spouse of insane person to sell or mortgage homestead, 649. form of, referring account to court commissioner for examination and report, 1192. form of, remitting clerk's fees, 125. form of, requiring administrator to render exhibits, 1163. form of, requiring notice of application for restoration of records, and of the setting of said application for hearing, 1815. form of, requiring third person having possession of a will to pro- duce it, 1620. form of, restoring powers of suspended administrator or executor, 484. form of, re-transferring proceedings, 479. form of, revoking letters, for contempt, and appointing some other person administrator, executor, or guardian, 1467. form of, revoking letters for wasting estate, 485. form of, revoking letters of administration, and appointing a per- son having a prior right, 399. form of, revoking letters of administration, short form, 485. form of, revoking letters on failure to give further security, 428. form of, revoking letters on failure to give new sureties, 433. form of, revoking probate of will, 1700. form of, setting apart homestead out of personal property worth more than five thousand dollars when selected, 593. form of, setting apart homestead where none was recorded, 552. form of, setting apart property exempt, 553. form of, setting, apart recorded homestead of value less than . five thousand dollars, community property, 550. form of, setting apart recorded homestead of value less than five " thousand dollars, selected by decedent out of his or her sep- arate property^ 551. 3024 GENERAL INDEX. [References are to pages.] O^DBB—fContimiea) form of, setting apart recorded homestead of value less than five thousand dollars, selected by the survivor only out of decedent's separate property, 552. form of, setting time for hearing report of appraisers of homestead end prescribing notice, value exceeCings five thousand dollars, 592. form of, settling final account, and for distribution, 1186, 1187. form of, settling final account, report, and petition for distribution under will, 1189. form of, suspending administrator or executor, 483. form of, suspending powers of administrator or executor until ques- tion of waste can be determined, 483. form of, that administrator bring suit to recover property fraudu- lently disposed of by decedent, 1017. form of, that application for letters and contest for letters be heard together, 360. form of, that citation issue to show cause why collateral-inheritance tax should not be paid, 1758. form of, that further security be given, 426. form of, that legatee, etc., refund money to pay debts, 1285. form of, that summary administration be had, 559. form of, that surety be released, 432. form of, to account on failure to show cause, 1170. form of, to show cause and directing notice to absconding admin- istrator or executor, 488. form of, to show cause why administrator should not be removed for not causing after-discovered property to be appraised and inventoried, 513. form of, to show cause why entire estate should not be assigned to widow and minor children, 560. form of, transferring proceedings to adjoining county, 476. form of, upon filing of petition to ascertain rights as heirs, 1302. form of, vacating sale of real estate, 855. granting letters of administration, effect of, 388. in proceorling to set apart homestead, certified copy of to be re- corded, 594. notice of application for, to sell or mortgage homestead of insane person, 648. of discharge of executor or administrator, validity of, 1425. of payment of debts can not be changed, 1257. of probate court, collateral attack on, 316. of probate sale of real estate, must contain what, 186. of removal of executor or administrator, and its effect, 498. of sale, copy of, to be served, published, or consent filed, 144. GENERAL INDEX. 3025 [References are to pages.] O^BUB— (Continued) of sale, verification of guardian's petition for, 139. recorded, to impart notice from date of filing, 1459. remedy of party aggrieved by, 316. requiring executor or administrator to give further security, 427. setting apart antemortem homestead, 604, 605. setting apart probate homestead, 634-636. setting apart probate homestead, vacating, 643. that executor file a bond, though will requires none, 422. to appear in proceedings to mortgage or lease decedent 's real estate, 979. to enforce production of wills, or attendance of witnesses, 1625. to file new bond, when and how, 427. to sell or mortgage homestead of insane person and its effect, 648. vacating decree establishing notice to creditors, 699. validity of, appointing guardian, 168. OEDBE CONFIEMINa SALE effect of, 945. form of order approving sales of personal property, 811. form of order confirming sale of contract to purchase land, 878. form of order confirming sale of real estate, 858. form of order confirming sale of real estate on bid in open court, 859. form of order confirming sale of real estate under will, 870. form of, of perishable property, 801. return of sale of personal property, and petition for confirmation and approval, 808. short form of order confirming sale of personal property, 812. to be made when, 856. to state what, 867. OEDEE OF COMMITMENT form of, of insane person, 276. of alleged insane person, 279. OEDEE OF SALE (See Probate sale; Eeferences to "Am. Dec." notes) form of, of all property of estate at one sale, 795. form of, of mining property, 817. form of, of personal property, 808. form of, of real estate, 838. form of, of real estate, at private sale, short notice, 844. form of, of real estate, in one parcel, or in subdivisions, and at either private or public sale, 839. form of petition for, of all property of estate at one sale, 791. 3026 GENERAL INDEX. [References are to pages.] OKDER OP SAli'E— (Continued) form of petition for, of real estate for best interests of estate, in- cluding application for the sale of personal property, 824. form of petition for, of real estate where personal property is in- sufficient, 834. form of, to sell perishable property, 799. of decedent's property, petition for, 898-907. of mines, etc., when and how made, 814. of real estate, interested persons may apply for, 840. of real estate, must contain what, 833. of real estate, when to be made, 833. OEDEB TO SHOW CAUSE form of, in escheat proceedings, 62. form of, on petition for sale of personal property, 805. form of, on petition to mortgage decedent's real estate, 984. form of, why application for leave to sell real estate should not be granted, 140. form of, why attachment should not issue for failure to return account of sales, 882. form of, why letters should not be revoked for failure to return account of sales, 881. form of, why order of sale of both real and personal property should not be made, 827. form of, why order of sale of incompetent's real estate should not be granted, 238. form of, why order of sale of insane person's real estate should not be granted, 237. form of, why order of sale of real estate should not be made, 828. form of, why property should not escheat, 62. form of, why sale of mines, etc., should not be made, 817. in proceedings to obtain order to lease decedent's real estate, 987. on petition to lease decedent's real estate, 990. service of notice of, 914. to persons interested to appear and show cause why order should not be granted for sale of real estate, 827. why decedent's property should not be sold, 913. why decedent's real estate should not be mortgaged or leased, affi- davit of publication of, 992. why decedent's realty should not be mortgaged is not insufficient when, 1000. why estatj less in value than fifteen hundred dollars should not be set apart, may be given how, 584. GENERAL INDEX. 3027 [References are to pages.] OKDEE TO SHOW CAX!SE~(Contmued) why mines and mining interests should not be sold, how made and on what notice, 814. why real estate should not be sold, service of, assent, publication, 829. OREGON (See County coukt) rights of doweress in, 664. ORPHAN ASYLUM, 2188. ORPHANS adoption of, 3, 2188. OUTSTANDING TITLE effect on, of setting apart property less in value than fifteen hun- dred dollars, 585. life tenant purchasing, 1594, 2673. PAPERS used in commitment of insane person, 268-279. PARCELS form of brief description of, 1814. PAROL EVIDENCE (See References to notes in "Am. & Eng. Ann. Cas. ") to explain intention of testator, 1568. PAROL PARTITION no disaffirmance of when, 221. PARTIAL BEQUESTS (See References to notes in "Kerr's Cal. Cyc. Civ. Code") PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) action on bond on distribution before final settlement, 1283. appeal from order for, may be taken by executrix when, 1293. appeal from order of, 1293, 1294, 2535. appeal from order of, "adverse parties," who are, 1293. assumption with respect to payment of collateral-inheritance tax, 1290, 2533. bond on, necessity of giving, 1289, 2533. 3028 GENERAL INDEX. [References arc to pages.] PAETIAL DISTRIBUTION PKIOR TO TINAL SETTLEMENT— (Continued) bond to be executed by heir upon application for, 1275. can not be decreed upon petition of executor or administrator, 1287. citation to appear and show cause why order for payment of money secured by bond should not be made, 1283. costs upon partition, how to be paid and apportioned, 1276. court has authority to grant petition for, without having vacated a prior order denying, 1293. court's discretion in determining whether it can be safely made, 1294. damages where appeal from order of, by executor, is frivolous, 1294. decree of, containing clause imposing condition is erroneous, 1291, decree of, to be granted when, 1275. decree of, will not be disturbed on appeal when, 1294. delivery of property to heir upon, 1276. estoppel from maintaining suit for, 1293. executor can not urge what questions on, 1292. executor or other person may resist application for, 1275. hearing on application for, 1289. necessity of giving bond on, 1289. no default can be taken upon hearing of petition for, 1290. notice of application for legacies, 1274. not to be made until taxes are paid, 1317. notice of, to be given, 1288. of personal property, may be made under provisions of will, 1288. order for, may be made when, 1290. order for payment of money secured by bond, 1283. order of, becomes final when, 1291, 2533. order of, not prejudicial when, 1291. partition of property upon, 1276. payment of legacies upon giving bonds, 1274, 2531. petition for, contents of, not prescribed by statute, 1287. petition for, form of, not prescribed by statute, 1287. power of courts on, 1286, 2532. promiscuous matters pertaining to, 1291, 2534. right of executor who contests petition for, as executor, 1291. should be denied or suspended when, 1292. what questions may be determined on, 1288. PARTIAL INSANITY (See References to "Am. Rep." notes) PARTIES (See Wills, contest of probate of; "Wills, probate op) in proceedings to determine heirship, 1299, 1324. GENERAL INDEX. 3029 [References are to pages.] PARTIES— (Continued) on contest of will after probate, 1703. to action against executor or administrator, 1068. to action by executor or administrator, 1044. to action for specific performance of contract to make a will, 976. to actions on administration bonds, 448. to actions, what executors are not, 1012. to appeal from order made on accounting and settlement, 1238. to foreclosure of mortgage against estate of decedent, 772. to foreclosure of mortgage on homestead, 780. to proceeding for leave to sell real estate, 901. who are necessary, to foreclose mortgage executed by decedent, 742. PAETITION (See References to "Am. St. Eep. " notes; Sections of the Code of Civil Procedure of California, arranged according to subject- matter) action by executor or administrator for, 1059. actions by heirs in, 1332. no disaffirmance of parol when, 221. of ante-mortem homestead, 619. of property on partial distribution, 1276. ' powers of guardians in, 127. probate court has no power to make, 310. PAETITION IN CONNECTION WITH DISTRIBUTION appointment of commissioners to make partition or distribution, 1385. commissioners must make report of their proceedings on partition, 1390. commissioners to make partition are not necessary when, 1390. decree of partition to be recorded, 1390. decree of partition, when not void, 1399. duties of commissioners on making partition, 1389. essentials of decree, and conclusiveness of, 1404. estate in different counties, how divided, 1386. estate may be sold, when, and how, 1389. is authorized only in what cases, 1402, 2568. limit as to whose interests may be recognized, 1404. limited power of court as to, 1402. notice must be given before partition is made, 1389. of estate not common, 1385. partition, and notice thereof, 1385. partition not to be made before notice given, 1389. partition or distribution after conveyance, 1386, 2568. payments for equality of partition, by whom and how made, 1388. • 3030 OENEEAL INDEX. [References are to pages.] PAETITION IN CONNECTION WITH DISTRIBUTION— /•(?oi»- tinued) petition and ptftbeedingS preliminary to decree, 1403, petition for partitiOli, time of filing, 1385. power of court after decree, 1405. questions as to advancements made, consideration of on, 1391i requirements as to notice, 1403. right to notice of proceedings, 1405. shares to be set out by metes and bounds, 1387. who are entitled to distribution, 1404. whole estate may be assigned to one, in certain cases, 1387. PARTNER is not entitled to administer on estate, 348. PARTNERSHIP (See Estates where partnership existed; References to "L. R. A. " notes) competency of party in interest in an action or note indorsed to, to testify in his own interest as to a transaction by him with a deceased partner, 1857. form of affidavit by, to creditor's claim, 677. PARTNERSHIP AFFAIRS who is not a competent witness as to facts which occurred prior to death of deceased obligor, 1855. ■PARTNERSHIP INTEREST can not be sold until when, 894. how to be sold, 802. PARTY as witness in action against estate of deceased person, 1844-1847, 1852-1854. PATENT form of petition for, 1006. PATIENT discharge of, from state hospital, 282-284. parole of, from state hospital, 283. PAYMENT evidence of, in suit on claims against estates, 744. for equality of partition in connection with distribution, 1388. form of order directing executor to make, to a legatee, of his share of an estate, 1279. GENERAL INDEX. 3031 [References are to pages.] , PAYMENT— ('Confinited; of allowance for support of family, 556. of distributive shares, duty of executor, 1376. of family allowance without order of court, 578. of fees of officers out of assets in hands of public administrator, 1503. of interest-bearing claims, 692. of legacies, and interest thereon, 1597, 1598. of legacies upon giving bonds, 1274. of liens on setting apart ante-mortem homestead, 617. on account of estate, public administrator not to be interested in, 1502. order for, of money secured by bond, 1283. PAYMENT OP CLAIMS appealable orders, 1780. PAYMENT OF DEBTS (See References to "Am. St. Eep. " notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Sec- tions of the Code of Civil Procedure of California, arranged according to subject-matter) advancement, what constitutes, 1260. appeal from orders respecting, 1271. application of legacies to, 1599, 2679. claims not included in order for, how disposed of, 1253. contesting debts on hearing of application to sell real estate for, 909. decree or order for, application for, 1265. decree or order for, duty of court, 1266. decree or order for, effect of, 1266. decree or order for, granting of, 1266. decree or order for, in general, 1265. decree or order for, validity of, 1266. demand, when not a debt or claim, 910. enforcement of payments, 1270. error to order dividend when, 1268. expenses of administration, what are, 1261. . .final Account, when to be made, 1255. form of order that legatee, etc., refund money to pay debts, 1285. form of petition for order directing legatee, etc., to refund money for, 1284. funeral expenses and expenses of last sickness, 1248, 2528. 1 . funeral expenses, burial of decedent, 1260, 2528. funeral expenses, monuments, etc., 1261, 2528. how to be made, 868. 3032 GENEKAL INDEX. tReterenoes are to pages.] PAYMENT OF T>EBTS~(Continued) how to be made, when provided for by will, 868. if estate is insufficient, a dividend must be paid, 1248. in ease of deficiency of assets, 1267. in general, 1265. intestate's estate is chargeable with, 1582. marshaling of assets for, 1264. neglect to render final account, how treated, 1255. no preference to debt of a particular class, 1258. not required before settlement of account, 1258. order for, and final discharge, 1249. order for payment of legacies and extension of time, 1254. order in which debts must be paid, 1246. order of, can not be changed, 1257. order of resort to estate for, 1582. out of community property, 1736. part payment in case of deficiency of assets, 1267. payment of "contingent" claims, 1267. payment of disputed claims, 1268. payment of interest-bearing claims, 1267. payment of judgments, 1269. payment of mortgages, 1269. payment of partnership debts, 1099. personal liability of representatives to creditors, 1253. premature or unauthorized payments, 1259. property available for, community property, 1263. property available for, in general, 1262. property available for, property bequeathed or devised, 1263. property available for, rents and profits, 1263. provision for disputed and contingent claims, 1252. sale of decedent's property for, 908-911. sale to pay expenses of administration, 910. sale to pay funeral expenses, 911. specific devises to contribute to, 911. where property is insufficient to pay mortgage, 1247. where provision by wUl is insufficient, 871. PAYMENT OF LEGACY (See References to "L. E. A." notes; Eeferences to notes in "Kerr's Gal. Cyc. Civ. Code") PENALTY for failure of public administrator to file reports, 1504. for refusal to obey citation to answer for alleged embezzlement of estate, 539. GENERAL INDEX. 3033 [References are to pages.] PEEISHABLE PROPERTY (See Sale of personal pkoperty) PERPETUITY (See References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas.") what is invalid as a, 1575, 2661. PERSONAL ASSETS (See References to "L. R. A." notes) PERSONAL DEBTS of executor or administrator, liability of sureties for, 441. PERSONAL INJURIES in conduct of decedent's business, liability of representative for, 1124. PERSONAL PROPERTY (See Sale op personal property) PERSONAL SERVICE form of proof of, citation, 1462. PETITION (See References to notes in "Kerr's Cal. Cyc. Code Civ. Proc. ") by guardian for sale of ward's estate, sufSciency of, 181, 182. citation to issue, when, for revocation of letters of administration is filed, 397. contents of, for probate of will, 1613. defects are not cured by order of sale when, 905. defects in, are cured by order of sale when, 905. filing of, for distribution, 1346. for appointment of guardian, what required, 165. for continuation of administration, 1318. for conveyance or transfer of property in case of death, 956. for decree to compel specific performance of contract of decedent to convey real estate, 970. for family allowance, 568. for letters of administration, 369-372. for order of sale must be in writing, 790. for order of sale of decedent's estate for purpose of paying debts, requisites of, 898. for order of sale of real property, amendment of, 905. for probate of nuncupative will, must allege what, 1724. for probate of will, 1637. 3034 GENERAL INDEZ. [References are to pages.] PETITION— ('Comtfawea; for removal of executor or administrator, BuflSciency of, 493. for removal of guardianship proceedings from one county to an- other, 118, 120. for revocation of letters of administration, 401. for revocation of letters of administration, hearing of, 399. for sale of decedent's property, demurrer to, 907. for sale of decedent's property, is defective when, 899. for sale of decedent's property, opposition to, 907. for sale of decedent's realty may be filed by creditor, 906. for sale of homestead of insane person, 646. for sale of mine, who may file, and what to contain, 813. for sale of ward's real estate must contain what, 183. for the revocation of letters of administration, newly discovered evidence on, 401. form of affidavit of posting notice of hearing of, for final distri- bution, 1313. form of, by agent of nonresident distributee, for sale of unclaimed personal property, 1413. form of, by corporation, for probate of will, 1614. form of, by corporation, for letters of administration, 355. form of, by heir, to recover property escheated to the state, 67. form of, by public administrator, for letters of administration, and contest of probate of will, 1653. form of, claiming money paid into treasury by agent for nonresi- dent distributee, 1420. form of creditor's application that suit be brought to recover prop- erty fraudulently disposed of by decedent, 1016. form of dismissal of, for an order directing an administrator to convey land, 965. form of, for admeasurement of dower, 653. form of, for allowance of expenses for education and maintenance of ward, 116. form of, for a patent, 1006. form of, for appointment of appraiser where value of property subject to collateral-inheritance tax is uncertain, 1746. form of, for appointment of guardian, 101. form of, for appointment of guardian of incompetent person, 233. form of, for appointment of guardian of insane person, 232. form of, for appointment of special administrator, 454. form of, for appointment of trustee under will, 1430. form of, for ascertainment of rights as heirs, 1300. form of, for authority to compromise debt, 1013. form of, for citation to show cause why collateral-inheritance tax should not be paid, 1757. form of, for decree of termination of life estate, 1470. GENERAL INDEX. 3035 [References are to pages.] PETlTIO'^—fContinued) form of, for decree setting apart homestead for use of family, 549. form of, for decree vesting homestead or community property in survivor, 1473. form of, for establishment of lost or destroyed will, and for revo- cation of letters of administration, 1715. form of, for establishment of lost or destroyed will, and for revo- cation of probate of prior will, and letters testamentary, 1715. form of, for further security in case of failing sureties, 423. form of, for judgment of restoration to capacity, 240. form of, for leave to adopt a minor, 5. form of, for leave to convey or mortgage homestead of insane spouse, 647. form of, for leave to invest moneys of estate in United States bonds, 1021. form of, for leave to lease decedent's real estate, 989. form of, for leave to mortgage decedent's real estate, 983. form of, for letters of administration, 353. form of, for letters of administration with the will annexed, 324. form of, for letters, etc., to others than those entitled, 355. form of, for letters, etc., upon estate de bonis non, 329. form of, for order directing an administrator specifically to per- form contract to convey real estate, 957. form of, for order directing executor specifically to perform con- tract to convey real estate, incomplete transaction, 958. form of, for order directing legatee, etc., to refund money for pay- ment of debts, 1284. form of, for order of sale of all property of estate at one sale, 791. form of, for order of sale of personal property, 804. form of, for order of sale of real estate, 840. form of, for order of sale of real estate for best interests of estate, including application for the sale of personal property, 824. form of, for order of sale of real estate, where personal property, is insufficient, 834. form of, for order requiring administrator to render an account, 1169. form of, for order retransferring proceedings, 478. form of, for order to render exhibit, 1162. form of, for order to sell perishable and other personal property likely to depreciate in value, 798. form of, for partition in connection with distribution, 1391. form of, for payment of collateral-inheritance tax, Colorado, 1747. form of, for probate of foreign will, 1685. form of, for probate of nuncupative will, 1744, form of, for probate of will, 1614, Probate Sup. 54. 3036 GENEGAL INDEX. tReterences are to pages.] PETITION— (Continued) form of, for production and probate of will in possession of third person, 1618. form of, for removal of guardianship proceeding, 120. form of, for revocation of letters of administration in favor of one having a prior right, 396. form of, for sale of mining property, 815. form of, for share of estate before final settlement, 1276. form of, for writ of habeas corpus for detention of child, 79. form of memorandum by clerk, fixing time for hearing, for final distribution, 1312. form of notice of hearing of, for final distribution, 1312. form of, of guardian for order of sale, 137. form of, of surety upon administrator's bond to be released, 430. form of, that surviving partner render an account, 1009. form of, to establish lost or destroyed will, 1714. form of, to revoke probate of will, 1694. form of, to revoke probate of will, and for probate of later wUl, 1695. form of, to vacate judgment of drunkenness, 266. laches in filing, for sale of real property, what amounts to, 900. mistake in, for sale of decedent's property is not fatal when, 899. notice of, for probate of vrill, how given, 1621. omission in, does not invalidate sale when, 899. that executor or administrator give further bonds, 423. to mortgage land of decedent, sufficiency of, 997. to revoke probate of will, how tried, 1699. to revoke probate of will, judgment, 1699. verification of, 904. verified, for sale must contain what, 822. verified, showing failing sureties, 423. where estate is insolvent, 791. who may, for probate of will, 1613. PETITION FOR DISTRIBUTION for distribution, question of heirship may be determined on hearing of, 1357. form of final account and report with, following an account cur- rent, 1179. form of final account and report with, insolvent estate, 1181. form of first and final account and report with, 1176. form of, for distribution of estate, 1310. form of order appointing day for hearing, and settlement of final account, 1184. form of order settling final account, report, and, under will, 1189. for partial distribution, 1287. for partition in connection with distribution, 1385, 1403. GENERAL INDEX. 3037 [References are to pages.] PHYSICIAN as witness on contest of probate of will, 1674. competency of, as a witness to establish a claim for medical ser- vices against a decedent's estate, 1857. form of certificate of insanity, 276. PLEADING (See Wills, contest op probate or; Wills, probate of) destruction or loss of will, 1721. in action against executor or administrator, 1070. in action by executor or administrator, 1048. in action to foreclose a mortgage against estate of decedent, 772. in proceedings to determine heirship, 1324. in suits on claims against estates, 738-742. on contest of will after probate, 1706. the statute of limitation in suits on claims against estates, 756. PLEADING AND PEACTICB (See Practice and procedure) in escheat proceedings, 72, 2215. pleading, in action on administration bond, 448. POLICY OF THE LAW as to exemption of homestead, 610. POLITICAL CODE OF CALIPOENIA (See Sections of the Political Code of California, arranged according to subject-matter; Sections of the Political Code of California, arranged numerically) POSSESSION (See Eeferences to notes in "Am. & Eng. Ann. Caa. ") of entire estate, executor or administrator to take, 1006. of legatees, 1584. public administrator to take charge of what estates, 1498. POSSESSION OF ASSETS (See Eeferences to "Am. St. Eep." notes; Sections of the Code of Civil Procedure of California, arranged according to subject- matter) duty of domiciliary executor to take, 534. executor or administrator is entitled to, 513. of homestead, right of decedent's family to remain in, 546, recovery of, by executor or administrator, 534. right to, and nature of, 532, 2341. 3038 GENERAL INDEX. [References are to pages.] POSSESSION OF ASSETS— (Continued) right to, how barred or lost, 533. statute of limitations runs against executor's or administrator's right of, 533, 2341. POSSESSION OF PROPERTY (See References to "L. R. A." notes) POSTHUMOUS CHILD (See Aftek-boen child; References to "L. E. A." notes; Sections of the Civil Code of California, arranged according to subject- matter) is entitled to take how, 1800. not provided for in will, rights of, 1579, 2666. unprovided for, to succeed, 1530. POSTING NOTICE form of afladavit of, 1809. POSTPONEMENT of sale of decedent's property, notice of, how to be given, 868. sale of decedent's property may be postponed not exceeding three months, 868. POWER and duties of guardian for spendthrift, 263. of devisee to sell, 1595, 2673. of guardian for habitual drunkard, 264. of guardian of insane or other incompetents, 235, 249-251. of person, whose incapacity has been adjudged after restoration to reason, 284. of special administrator, 463. of special administrator to cease when, 459. to apoint special administrator, 461. to discharge from insane asylums, 289. POWER IN WILL, SALE UNDER (See Sale in general) POWER OF APPOINTMENT (See References to "L. E. A." notes) POWER OP COURT after decree of distribution, 1405. as to partial distribution, 1286. on final distribution, 1365. GENERAL INDEX. 3039 [References are to pages.] POWER OF COVRT— (Continued) on partition in connection with distribution, how limited, 1402. to distribute to trustee named in will, 1452. to set aside discharge of executor or administrator, 1426. POWER OP LEGISLATURE , (See References to "L. R. A." notes) POWER OP SALE (See References to "Am. Dec." notes) POWER TO DEVISE (See References to notes in "Kerr's Gal. Cyc. Civ. Code") POWER TO DISCHARGE PROM INSANE ASYLUMS applies only to "patient" of asylum, 291. conclusiveness of discharge, 291. effect of discharge, 291. in general, 289-292. PRACTICE (See COLLATEKAL-INHERITANCE TAX; RuLES OP PRACTICE) where defendant dies pending action against him, 764. PRACTICE AND PROCEDURE (See Probate practice and procedure) in setting apart probate homesteads, 624. PRECATORY TRUSTS (See References to notes in "Am. & Eng. Ann. Cas. ") PRECATORY WORDS (See Wills, construction and interpretation of) PREDECEASED CHILD (See References to notes in "Am. & Eng. Ann. Cas.") PREFERENCE in appointing special administrator, 457. in granting letters of administration with the will annexed, 337. none given to any debt of a particular class, 1258. of persons equally entitled to administer, 349. of public administrator to letters of administration, 1506. PRESENTATION of account, where representative is dead, 1196. 3040 GENERAL INDEX. [References are to pages.] PRESENTATION OF CLAIM (See CLAiiiS against estate) against ante-mortem homestead, necessity of, 614. against ante-mortem homesteads, 614. against estate where partnership existed, 1097. against probate homestead, 638. in action against executor or administrator to enforce trust, 1080. PRESUMPTION (See References to "Am. Rep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas. '•') as to fact of insanity, 255. as to law of sister state, 2564. as to legitimacy of child, 56. as to regularity of probate orders and decrees, 1479. as to revocation of lost or destroyed will is overcome when, 1722. as to sanity of testator, 1638. as to survivorship, 1807. as to will, 1640. incident to loss or destruction of will, 1722. in exapiining record of mortgage authorizing sale of decedent's property, 999. of notice to ward before sale of real estate, 229. on appeal from order allowing account of special administrator, 466. on appeal from order of probate court, 1792. on collateral attack, 386, 387. on collateral attack, on probate sales, 950. on contest of application for letters of administration, 383. that facts existed authorizing appointment of special adm-nistrator, 387. where claim against estate has been allowed and approved, 725. PRETERMITTED ADOPTED CHILD (See References to "Am. St. Rep." notes) PRETERMITTED CHILD (See References to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cyc. Civ. Code") how law operates with respect to, 1577, 2665. probate sale of interest of, 942. rights of pretermitted illegitimate child, 58, PRETERMITTED HEIRS (See References to "Am. St. Rep." notes) GKNEEAL INDEX. 3041 [References are to pages.] PRIORITY none between sale of real and personal property for payment of debts, 789, 890. PRIVATE SALE ninety per cent of appraised value must be offered at, 847, of decedent's property, 920. of land, bids at, when and how received, 843. of real estate, how made, and notice, 843. real estate of decedent may be sold at when, 834. PRIVILEGED COMMUNICATIONS (See References to "L. R. A." notes) PROBATE COURT (See References to "Am. Dec." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Gas."; Refer- ences to notes in "Kerr's Cal. Cye. Code Civ. Proc. ") as court of record, 296. concurrent jurisdiction of, and of court of equity, 320. conflicting jurisdiction of, 304, 305. county court of Colorado as, 304. county court of Oregon as; 305. death of party as a jurisdictional fact, 297. does not have jurisdiction in what cases, 306. exclusive jurisdiction of, 304. exercise of jurisdiction of, 299. has exclusive original jurisdiction of what matters, 300. has no jurisdiction to appoint administrator when, 388. has no jurisdiction to make partition, 310. has no jurisdiction when, 309-316. has no power to foreclose mortgage, 310. has power to appoint guardians, 164, 210, 211. in Kansas, has jurisdiction in habeas corpus cases, 93. intendments in favor of jurisdiction of, 297. is not a court of equity, 310. jurisdiction of, as to insane persons and other incompetents, 244. jurisdiction of, collateral attack on, 316. jurisdiction of, in county in which estate has not been "devised," 310. jurisdiction of, in escheat proceedings, 69. jurisdiction of, in matters of guardianship, 315. jurisdiction of, in New Mexico, how confined, 296. 3042 GENERAL INDEX. [References are to pages.] PROBATE GOXTBT— (Continued) jurisdiction of, in particular matters, 308. jurisdiction of, is statutory and limited, 296. jurisdiction of, of body of deceased, 312. jurisdiction of, on application for final distribution, 1349. jurisdiction of, over estate where partnership existed, 1098, 2496. jurisdiction of, over proceeds of life insurance policy, 311. jurisdiction of, over timber-culture claimant's claim, 311. jurisdiction of, over trusts under wills, 1439. jurisdiction of particular courts as, 301. jurisdiction of, to adjust disputed rights generally, 313. jurisdiction of, to administer a living person's estate, 313. jurisdiction of, to appropriate share of heir or devisee to payment of debts, 312. jurisdiction of, to correct classification of claims, 721. jurisdiction of, to enforce a trust, 315. jurisdiction of, to foreclose mortgage, 311. jurisdiction of, to order property to escheat, 311. jurisdiction of, to set aside its own decree, 309. jurisdiction of, to try title, 314. jurisdiction of, where deceased was a nonresident, 312. jurisdiction vests in, when, 388. matters of guardianship over which it has no jufisdiction, 212. no concurrent jurisdiction in California as to probate matters, 300. power of, to appoint guardian for wards domiciled in this state, 211. residence as a jurisdictional fact, 298. superior court of California as a, 301-304. what presumptions attach to proceedings of, 297. where same court has jurisdiction in equity and in matters of pro- bate, 318. PROBATE HOMESTEAD (See Homestead) PROBATE JUDGMENT (See References to "Am. Dec." notes; References to "Am. St. Rep." notes; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc. ") PROBATE MATTERS transfer of, to adjoining county, 475. PROBATE OP POREIGlSr WILL (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) GENERAL INDEX. 3043 [References are to pages.] PROBATE OF WILL (See References to "Am. Dee." notes; References to "Am. St. Rep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Sections of the Code of Civil Procedure of California, arranged according to subject-matter; Wills, pro- bate of) costs on successful contests before or after probate, 1494. public administrator can not contest, 1510. PROBATE PRACTICE AND PROCEDURE appointment of attorney for absent heira, 1491, citation, compared with summons, 1485. citations, obedience to, how enforced, 1487. citations, personal notice, 1487. citations, service of, 1485. citations, service of, by publication, 1486. citations, trial after response to, 1487. costs, are statutory, 1493. costs, contesting probate of will, 1494. costs, discretion of court, 1493. costs, do not include attorneys' fees, 1493. costs, in action against co-executors, 1494. costs, in general, 1493. costs, no amendment of judgment to include, 1493, costs, presumptions as to, on appeal, 1495. death before patent is issued, 2579. description once published is sufSoient, 1488. disposition of homestead, 2578. disposition of life estate, 1495, 2578, 2583. jury trial of issues of fact joined, 1490. notice in probate proceedings, how served, 1488. orders and decrees, are void when, 1481, 2581. orders and decrees, collateral attack on, 1482, 2581. orders and decrees, correction of errors, 1478. orders and decrees, effect of, 1481. orders and decrees, entries of, in records, 1480. orders and decrees, form of, signing, filing, etc., 1477. orders and decrees, how far a protection to the executor or admin- istrator, 1481. orders and decrees, may be vacated when, 1482, 2581. orders and decrees, misleading entries in clerk's register, effect of, 1479. orders and decrees, obedience to, how enforced, 1483. orders and decrees, presumptions of regularity, 1479. orders and decrees, signing of minutes, 1479, 2580. 3044 GENEEAL INDEX. [References are to pages.] PEOBATE PRACTICE AND p-ROCEDirR^— (Continued) orders and decrees, to contain description when, 1478. publication, how often made, 1484, 2582. rules of practice in general, 1488. trial of issues, 1489. "PEOB. EEP. ANN." (See References to notes in "Prob. Rep. Ann.") PEOBATE SALE (See References to "Am. Dec." notes; References to "L. E. A." notes ; References to notes in ' ' Kerr 's Cal. Cyc. Code Civ. Proc. ' ' ; Sale in general; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) law governing, 889, 2444. one description of realty is sufficient, 1463. right of heirs to attack, 1337. sale of property specifically devised or bequeathed, 1583, 1584. PROBATE SEAL is entitled to full credit when, 346. PROCEEDINGS in adoption of children, 2189. to determine heirship, 1320-1327, 2541. PROCEDURE AND PRACTICE' (See Probate practice and procedure) in proceedings to obtain order for mortgage of decedent's real estate, 1000, 2465. PEOPIT representative not to profit or lose by estate, 1111, 1130. PROOF OP HANDWRITING (See Wills, contest op probate or) PROMISCUOUS PROVISIONS OP CODES OF CALIFOENIA (See Sections of the Civil Code of California, arranged according to subject-matter; Sections of the Code of Civil Procedure of Cali- fornia, arranged according to subject-matter) accumulation of income, 1801. application of income to support, etc., of minor, 1802. children born after dissolution of marriage, 1800. children of annulled marriage, 1801. contingent remainder in fee, 1804. directions as to accumulations of income, validity of, 1801. GENERAL INDEX. 3045 [References are to pages.] PEOMISCUOUS PEOVISIONS OF CODES OF CAIiIFGENIA— CCon- tinned) directions as to income, when void in part, 1801. effect of will upon gift, 1806. guardian ad litem, how appointed, 1802. infant, etc., to appear by guardian, 1802. investment of money by trustee, 1805. invohmtary trusts resulting from negligence, etc., 1805. legitimacy of children born in wedlock, 1799. mere possibility is not an interest, 1804. minors, who are, 1799. persons who can not testify, 1808. posthumous children, 1800. powers of persons whose incapacity has been adjudged, 1803. powers of superior judges at chambers, 1807. presumption as to survivorship, 1807. purchase, by trustee, of claims against trust funds, 1805. qualities of expectant estates, 1804. service by mail, how made, 1806. suspending power of alienation, 1803. tenure by which homestead is held, 1803. trustee's influence not to be used to his advantage, 1805. what is evidence of publication, 1806. who may dispute legitimacy of child, 1800. who may own property, 1799. will includes codicil, 1805. PEOMISSOET NOTES actions by heirs on, 1333. competency of maker of note in action by executor thereon, to testify as to transactions over which the note arose, 1859. PEOOr OF SIGNATUEE BY MAEK (See Eeferences to "L. E. A." notes) PEOOF OF WILL (See Eeferences to notes in "Kerr's Cal. Cyo. Code Civ. Proc"; Wills, probate of) PEOPEETY available for payment of debts, 1262-1265. PEOPEETY OF ESTATE (See Effects op decedent) citation to account for, 541. citation to person suspected of having embezzled, 537. compelling disclosure by commitment, 539. 3046 GENERAL INDEX. [References are to pages.] PROPERTY OF 'EBTATE~(ConUnued) construction and validity of statute authorizing recovery of, 542. embezzlement of, 542, 2343. embezzlement of, before issuance of letters, 536. indictment for embezzlement of, 542. interrogatories and answers to be in writing, 540. power of court in proceedings to recover, 543, 2343. refusal to obey citation to answer interrogatories, 539. sufficiency of petition to recover property of, embezzled, 542. surviving heirs may collect money deposited in bank, 2332. PROVINCE OF COURT concerning the removal, suspension, or resignation of executors or administrators, 492. PUBLIC ADMINISTRATOR (See References to notes in "Kerr's Cal. Cyc. Code Civ. Proc. "; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) appeal from denial of application for letters, 1512. bond and oath of, 1498, 1508. burial expenses of deceased person, 2585. can not contest probate of will, 1510. character of office, 1504. compensation of, 1114, 1511. discretion of court to appoint administrator in place of creditor, 382. discretion of court to appoint, in place of nominee for letters tes- tamentary, 337. disposition of moneys deposited by, escheat, 1501. disposition of unclaimed estate, 1502. district attorney, duty of, with respect to, 1504. does not acquire interest in estate, how, 389. duty of, as to moneys of intestates, 1509, 2585. duty of persons in whose house any stranger dies, 1498. duty of, to deposit moneys with county treasurer, 1501. duty when estate less than $75, 2586. escheated moneys and effects, how to be disposed of, 1509. form of petition by, for letters of administration, and contest of probate of will, 1653. has no right to contest appointment of administrator when, 382. has no vested right to letters, 379. liability after expiration of his term, 446. may contest another's right to administer, 1510. moneys and eflEects escheat to state when, 1501. must deliver up estate when, 1499. GENERAL INDEX. 3047 [References are to pages.] PUBLIC ADMINI8TEAT0E— rContinMed; must make and return inventory, 1499. must procure letters like any other applicant, 446. no right to letters, in case foreign will, 1507. not to be interested in expenditures of estate, 1502. notice to, by civil oflSeers, of waste, 1499. oath and bond of, 1508, 2587. order on, to account, 1500. payment of fees of oflScers out of assets of estate, 1503. penalty for failure to file report, 1504. personal liability of, on contracts, 1511. powers, duties, and liability of, 1508-1511. preference of, to appointment as administrator, 377, 2587. proceedings against, for failure to pay over money, 1502. "return" of condition of estate, 1510. right of, to appointment as administrator with the wiU annexed, 337. right of, to be appointed in place of nominee of nieces and nephews, 379. right of, to contest appointment of another petitioner, 382. right of, to writ of prohibition, 1510. right to letters, competency, 1505. right to letters, conflict of jurisdiction, 1507. right to letters, discretion of court, 1506, 2587. right to letters, in general, 1505. right to letters, issuance of letters, 1508. right to letters, preference, 1506. suits by, for property of decedents, 1500. summary sale of personal property, 2586. to administer estates, how, 1499. to administer oaths, 1503. to file reports, 1504. to obtain letters, when and how, 1498. to take charge of what estates, 1498. what chapters of code must govern, 1503. when entitled to administer on estate, 348. when to make and publish return of condition of estate, 1500. when to settle with the county clerk, 1502. PUBLIC AUCTION notice of sale of land at, 841. real estate of decedent may be sold at when, 834. sale of decedent's property at, 919. sales of land at, must be made at what time and place, 842. PUBLIC SALE of decedent's property at public auction, 919. 3048 GENERAL INDEX. [References are to pages.] PUBLICATION form of aiEclavit of, 1458. how often to be made, 1458, 1484, 2582. notice by, to incompetent before appointment of guardian, 248. of notice of sale, 917. of notice to creditors, form of affidavit of, 671. of notice to creditors, form of order for, 669. one description of realty is sufficient, 1463. what is evidence of, 1806. PUBLICATION OF NOTICE form of order directing, of petition for leave to invest moneys of estate, 1022. PURCHASE by trustee of claims against trust fund, 1805. PUECHASE-MONET application of, where property under mortgage or other lien is sold at probate sale, 896. of sale of land on credit, how secured, 847. PURCHASER at guardian's sale, and his rights, 188. at sales made under power given in will, estoppel of, 937. from heirs, does not acquire what, 1343. from heirs, in general, 1342. of estate, executor or administrator to become, 1036. on foreclosure of decedent's property, title of, 1000. purchase by executor failing to qualify, effect of, 941. QUALIFICATIONS OF SURETIES form of order of reference to court commissioner to examine and report on, 1813. QUALITIES of expectant estates, 1804. QUIETING TITLE (See Suit to quiet title) actions by heirs in suit to quiet title, 1333. who may testify in action to quiet title 1842. REAL PROPERTY (See Sale op keai estate) sale of personal property, for interest of estate, may be had on hearing of application for sale of, 804. GENERAL INDEX. 3049 [References are to pages.] KECErVER (See Complaint) EECOED of provisions of lost or destroyed will, 1718. on appeal in guardianship matters, 229. recorded decree or order to impart notice from date of filing, 1459. BECOEDING judgment admitting will to probate, and proofs, must be recorded, ] 656. of certificate of discharge of recovered patient, 284. RECORD INa COPY OP DECREE for conveyance or transfer of property in case of death, effect of, 966. necessity of, in case of conveyance or transfer of real property, in case of death, 963. RECOVERY OF POSSESSION of estate, by executor or administrator, 534. REDEMPTION of mortgage against estate of decedent, 775, 780. power of, by executor or administrator, from lien, 1091. EEEEEEE form of order appointing, of administrator's account and adjourn- ing settlement, 1192. form of order appointing, of guardian's account and adjourning settlement, 132. form of referee's report of examination of account, 1193. may be appointed to examine accounts of representative, 1191. report of, in accounting and settlement, 1212. REFERENCE (See Eeferences to notes in "Am. & Eng. Ann. Cas.") form of order of, to court commissioner to examine and report on qualifications of sureties, 1813. form of order referring account to court commissioners for exami- nation and report, 1192. REFERENCE OF CLAIM against estate, 726. effect of referee's allowance or rejection of decree, 686. may be made where it is doubtful, 686. 3050 GENERAL INDEX. [References are to pages.] REFERENCES TO "AM. DEC." NOTES actions by heirs to recover possession of property before distribu- tion in probate, 1332. ademption of legacies, 1599. advancements, 1402. allowance of claims by executors and administrators, when and against whom conclusive, 725. appointment and powers of administrators de bonis non, 1030. assignee of executor or administrator may sue in foreign courts when, 1047. assignment of dower, 661. capacity of corporation to take by will, 1590. charitable use, devise to, 1577. conclusiveness of decree of distribution, and power of chancery to correct or set aside a settlement of accounts in probate courts, 1232, 1370, 1371. corporations, devise to, 1590. declarations of executor or administrator, when admissible as evi- dence against the intestate's estate, 1050. declaration of testator to impeach or invalidate will, 1677. degrees of consanguinity and affinity, how computed, 39. effect of annual settlement of executors and administrators as res judicata, 1231, 1233. effect of covenants in conveyances made by executors or adminis- trators, 947. effect of probate of will in another state, 1692. executor or administrator is vested with power of sale by implica- tion when, 935. executor or administrator should be charged with interest when, 1128. executors de son tort, 1027. form and contents of deed of executor or administrator, 948. gifts by will, designating no donee, 1592. habeas corpus for custody of children, 93. holographic wills, 1547. inheritance by half blood, 48. interest in lands, taken by executor or administrator under the will for the purpose of executing a power when, 940. judgment against an executor or administrator, how far conclusive on the sureties, 451. letters of administration are void for want of jurisdiction when, 386, 1030. liability of an executor or administrator for negligence, 1124. liability of executor or administrator in a foreign jurisdiction for the property of decedent, 1118. GENERAL INDEX. 3051 [References are to pages.] EEFEBENCE8 TO "AM. DEC." NOT'ES— (Continued) liability of one executor or administrator for the acts and defaults of another representative, 1118. liability of sureties in proceedings against them on the bond of an executor or administrator, 439. power of administrators to make estates of decedents liable for attorneys' fees, 1144. power of courts of probate to revoke probate of will, or to probate additional will or codicil, 1634. power of executor or administrator to revive debts, 1080. power of executors, 1030. powers and duties of ancillary administrators, and necessity for ancillary administration, 1030. probate judgments, 1483. probate of will or letters of administration, when void for want of jurisdiction, 518. probate of will, when void for want of jurisdiction, 1634. probate of will, who may oppose, 1636. purchases in the interest of executors or administrators at sales made by them, 932. release of debt by one of several executors or administrators, 1032. sales by executors or administrators are void because in excess of the order of sale when, 930, 2455. statute of limitations begins to run in favor of an executor or administrator when, 1067. testamentary capacity to make a will, 1538. testamentary writings or wills, what constitute, 1540. validity of grants of administration, 365. what constitutes a breach of the bond of an executor or adminis- trator, 440. what persons are bound by probate, and refusal of probate, of wills, 1636. when and how the granting of letters of administration may be prevented, 366. who may be an executor or administrator, 333. widow's right to administer on the estate of her deceased husband, 366. REFERENCES TO "AM. EEP." NOTES agreement to renounce executorship is illegal when, 492. agreements to relinquish compensation of executors or administrator, whether and when enforceable, 1136. executor or administrator of estate of a living person, 313. presumptions arising when partial insanity has been shown, 1672. testamentary capacity to make a wUl, 1538. Probate Sup. 65. 3052 GENERAL INDEX. [References are to pages.] EEFEEENCES TO "AM. ST. EBP." NOTES abatement of legacy in case of deficiency of assets, 1599. actions by heirs in respect to personal estate, 1333. ademption of legacy, 1599. admissibility of the declarations of the testator to sustain, defend, or aid in the construction of his alleged will, 1676. adoption by one person of the children of another, 21. advancements, 2679. agreement to renounce executorship is illegal when, 492. assignment of dower, 661. aversion to relatives as affecting mental capacity to make a will, 1538. bequests, generally, 2672. care and skill required of executors and administrators, 1030. collateral attack on right of acting executor or administrator, 1030, 2489. common-law powers of executors, 1030. eommon-law powers of guardians, 173. community property, what is, 2776-2780. conditions precedent and subsequent in a will, 1601, 2682. constitutionality of laws affecting taxation of collateral inherit- ances, 1763. construing together wiU and codicil, 2633. contract to make will, 2615. contest will, who may, 2720. deposit of trust funds in bank by an executor or administrator, 1031, 1123. descent of title to personal property, 40. devise for life with power of disposal, 2674. dispensing with administration of estate, 365. effect of will upon pretermitted adopted child, 1578. ejectment, action by executor, 2487. election between right of dower and benefits of a will may be compelled when, 1604, 2687. estoppel against married women, 2797. executors and administrators, general nature of liability of, 2503. executor de son tort, 1027. fraudulent conveyance, relief from, 2338. guardian, position and powers of, 2218. homestead law, general policy of, 2362. habeas corpus for custody of children, 93. holographic wills, 2619. incorporation of extrinsic papers into wills, 1544. inheritance taxation, as to, 2839. insane delusions invalidate will when, 1667. GENEKAL INDEX. 3053 [References are to pages.] REFERENCES TO "AM. ST. REP." NOTES— ('ComWnitea; laehes of executors or administrators in applying for order author- izing them to sell property for the payment of debts, 901. liability for the debt of an executor or administrator owing to the estate, 1119. liability of estates of decedents for contracts and torts of executors and administrators, 1118. liability of guardian for losses to ward's estate, 2255. liability of heir or devisee for debt of ancestor, 1340. liability of sureties on bond of executor or administrator for a debt of the representative owing to the estate, 442. lost or destroyed wUls, including proceedings for their probate, 1722. method of compelling settlement of accounts of deceased executor or administrator, 1228. method of compelling settlement of accounts with deceased guardian, 199. mutual wUl, 2621. partial intestacy, 2661. partition in connection with the distribution of estates of deceased persons, 1402. personal liability of guardian for losses to ward's estate, 2255. possession of personal assets, 535. power and duty of executors or administrators as to property out- side of the state, 1042. power of illegitimates to inherit and to transmit inheritances, 55. powers and duties of executors and administrators respecting prop- erty outside of the state, 1030. presentation of claim against estate, failure to present in due time, 2409. pretermitted heir may take as child en ventre sa mere, 1578. probate judgments, 1483. probate of foreign wills, 1691. probate of lost or destroyed wills, 2773. probate of wills, equity declines jurisdiction over, and will refuse to cancel or set aside such probate on the ground of fraud or perjury, 1634. relief from fraudulent conveyances after death of grantor, 2338. relief in equity from orders and decrees of probate and other courts having exclusive jurisdiction over the estates of dece- dents and of minors and other incompetent persons, 213, 1482. relief in equity from orders settUng the accounts of executors and administrators, 1236. relief in equity from orders settling accounts of guardian, 208. revocation, revival, and republication of will, 1551, 2628. right of adopted child to inherit, 21, 49, 2197. right of aliens to transmit or receive an inheritance, 53. 3054 GENERAL INDEX. [References are to pages.] REFERENCES TO "AM. ST. REP." NOT'ES— (Continued) right of court to surcharge executor on own. motion, 2518. right of executors or administrators to defend or to impeach on the ground of fraud, 1082. right of nonresident to act as executor or administrator, 334, 393. right to contest power of corporation to take or hold property, 1590. rights and remedies of omitted child, 1579. rights of an heir in the personal property of his ancestor, 1329. rights, powers, and duties of guardians ad litem and next friends of infants, 87. subscribing witnesses, their competency, and the effect of their testimony opposing, or supporting, a will, 1708. succession to estate of intestate, 40. summary proceedings to discover or to recover property of estates of decedents, 523. testamentary capacity, adjudication of insanity, as showing want of, 2600. testamentary rights or wills, what constitute, 1540, 2591, 2625, the attestation and witnessing of wills, 1540. validity of grants of administration, 365. vesting of legacies when, 2690. what constitutes undue influence, 1668, 2731. will, contract to make, 2615. will, distinction between deed and, 2617. will, mutual or reciprocal, 2621. wrongful death, action for, 2485. REFERENCES TO "L. R. A." NOTES abandonment of homestead by insane spouse, 651. account, objection to account of co-executor, 2576. acknowledgment of outlawed debt by devise or legacy reciting a consideration, 748. action by insane person, 255. ademption of legacies, 2676. administration bond, liability of sureties on, 2318. administrator's right to possession of personal property of his dece- dent and to recovery, 535. administrator's right to sue for the wrongful death of his intestate, 1055. admissibility of extrinsic circumstances in ascertaining intention of testator in respect to disinherited and after-born child, 1579. adoption of adult under statute providing for adoption of child, 12. advancements to heirs, doctrine of, 1590, 2679. alien's right to inherit, 53. allowance of attorneys ' fees in suit for administration of decedent 's estate, 1144. GENERAL INDEX, 3055 [References are to pages.l EEFEEENCES TO "L. B. A." NOTES— (Continuea) ancillary letters of administration may be granted when, 1043. antetestamentary declarations of testator as evidence of undue in- fluence in the making of a will, 1676. appointment of guardian, desire of aged person to marry, as ground for, 2239. apportionment of income upon death of life beneficiary, 2673. attestation of will, 1540. beneficiary under will put to election when, 2670. benefit certificate, 2683. bequest of stocks, bonds, or notes, general or specific, 1592.' bill for construction of will, and for directions to trustees, 1633. binding effect of settlement by sole heir or distributee, of claim belonging to estate, upon administrator, 1360. burden of explaining erasures in will, 2705. cancellation or mutilation of will as affected by invalidity of a sec- ond will, 1551. carrying on of business of ward by guardian, 2255. character of presumption as to undue influence in gift or bequest to mistress, 1673. charitable bequest, what is, 2664. child, custody of, 2223. "chUd," including adopted child in will, 2648. claims against estate are barred when, 755. claims against estate, testamentary libel as, 2406. co-executors are considered as one person, 1041. collateral attack on lunacy proceedings, for want of notice to the lunatic, 249. collateral impeachability of flndings as to jurisdictional facts on which administration of a decedent's estate is founded, 366, 388. collateral-inheritance tax, application of statute to adopted chil- dren, 1769. collateral-inheritance tax, land in other states, 1769. community property, liability of, for debts, before estate descends to heirs, 1738. community property, what is, 2780. comparison of marks and spelling in wills and other writings, 1540. compromise or release by personal representative of claims due the estate, 1032. conclusiveness of foreign probate as affecting real property, 1692. conclusiveness of probate as res judicata, 1642, 1683. condition subsequent in a will, 1601, 2682. conflict of laws as to adoption, 11. conflict of laws as to legitimacy of distributee, 1360. conflict of laws as to wills, 1550. 3056 GENERAL INDEX. [References are to pages.] EEFEEENCES TO "L. R. A." NOT'ES— (Continued) constitutionality of statute permitting adoption of child without consent of parents, 2190. constitutionality of statutes providing for the administration of the estate of an absentee, 1742. construction of will, intention to govern, 1568. construction of will, jurisdiction of suits for, 1634. construction, validity, and effect of devises and legacies, 1590. contingency of claim as affecting limitation of time for its pre- sentation, 711, 749. contingent remainders, 2694. conversion by directing sale after devising land, 2458. co-owner put to election, when, 2669. correction of misdescription of land in will, 1572. custody of child, 2223. debts owing by executors or administrators to estate, 2334. deed by insane person when under guardianship, 255. descent and distribution among kindred of half blood, 48, 2205. descent and distribution of property of adopted child, 2197. enforceability of contract to give child share of estate, 2197. descent of unpatented mining claim, 41. descent to murderer, 52, 2206. desire of aged person to marry, as ground for appointment of guardian, 2239. devestiture of estates of persons not in being, 1607. devise of life estate to unborn children of living persons, as con- travening the rule against perpetuities, 1579. devises in severalty, 2651. devise to a class, 2656. disinherited heirs; heirs are favored at law, 1571. distribution when domiciliary and ancillary administrators have been appointed, 1346. does ability to write invalidate signature made by mark or by' aid of other person guiding the pen, 1540. ' domiciliary administrator, right to sue on judgment in another state, 2488. dower in homestead; relative rights of wife and children, 664. escheat, 69. effect of ancillary appointment after commencement of action by foreign executor or administrator, 1043. effect of appointment of debtor as executor or administrator to discharge debt, 2334. effect of attempt by father to appoint a guardian for his child against the surviving mother, 90. effect of codicil, 1543. effect of creation of testamentary trust for payment of debts, 1436. GENERAL INDEX. 3057 [References are to pages.] EEFERENCE8 TO "L. E. A." NOT-ES— (Continued) efEeet of declaring one to be an heir or next of kin, in will, 2648. effect of executor's promise, as to payment of legacy, upon trust relation with legatee, 1435. effect of meretricious relations between testator and beneficiary, 2669. effect of misnaming estate in granting letters of administration, 2308. effect of naturalization on alien's right to inherit, 53. effect of probate of a will in another state, 1692. effect of qualifying words, "as executor," and, "as administrator," 948, 1050. effect of specifying use of real estate, in devise to religious society, 1576. effect of state constitutions and statutes upon inheritance by or from an alien, 53. effect of statute relating to the competency of the party to testify in regard to transactions or communications with a deceased person, or the admissibility of his testimony as to transactions with the attorney or agent of such person, 1849. effect of subsequent marriage, followed by birth of a child, to revoke the woman's will, 1553. effect of treaties upon alien's right to inherit, 53. effect of unnatural testamentary disposition on question of undue influence, 1539. effect of videlicet following word "heirs" in will, 2648. effect of widow's death before election, 1604. effect, on administrator, of widow's election; 1604. ejectment by executor or administrator, 1056. election, co-owner put to, when, 2669, 2687. election, on behalf of insane widow,: 2687. election to take under will, 1604. enforceability of contract to give child a share of estate in con- sideration of the surrender of the child to the prom'sor as affected by noncompliance with a statute prescribing the mode of adoption, 975. equitable conversion, 939, 2457, 2458. estimating value of dower right, 661. evidence as to testamentary capacity, 1639. evidence or declarations to show maternity of illegitimate child, 56. execution of executor's or administrator's bond on condition that others shall sign, 435. executor or administrator as real party in interest, by whom action must be brought, 1044. executor or administrator, insanity of, 2324. executors and administrators, removal of, 2328. 3058 GENERAL INDEIi. [References are to pages.] EEFEEENCES TO "L. E. A." NOTES— (Continued) executors' commissions are chargeable when, 1136. failure to identify subject-matter of devise, 2651. foreign corporation as executor or administrator, 334. foreign judgment against executor or administrator, 1075. foreign letters of administration, 393, 1042. forfeiture clause in will, what amounts to contest of, 2767. formal execution of will, what law governs, .1540. fraud and undue influence in connection with drunkenness as af- fecting testamentary capacity, 1539. garnishment of distributive shares and residuary legacies before settlement, 1379. garnishment of executor or administrator, 1075. garnishment of husband's interest in wife's legacy or distributive share, 1379. ground for appointment of guardian, desire of aged person to marry as, 2239. guardian carrying on business of ward, 2255. guardian's liability for losses to ward's estate, 2255. habeas corpus decree as to custody of infant as res judicata, 98. holographic wills, 1547, 2617. homestead, crops grown on as exempt, 2392. homestead exemption, surplus of paramount lien, 2376. homestead in property used as hotel, 2389. homestead ' ' otherwise disposed of according to law, ' ' 2391. homestead in decedent's estate, 596. homestead, power of husband to create easement in, 2384. homestead, validity of conveyance by wife, 2384. homicide as affecting devolution of property, 52, 2206. illegitimates as next of kin, 55. improvements, right of heir to completion of, 2494. incapacity of foreign executor or administrator to sue, 1047. indebtedness of heir to estate as counter-claim or set-off against distributive share in proceeds of real estate, 1379. informal will, probate of, 2703. inheritance by, through, or from illegitimate, 55. inheritance from adopted child, 21. inheritance tax, as to nature of, 2839. inheritance tax, basis of computing value of life estate or annuity, 2842. inheritance tax, general tax exemptions, 2834, 2836. inheritance tax including property out of state, 2834. inheritance tax discrimination against alien, 2835. inheritance tax on community property, 2836. inheritance tax on conveyance to take effect after grantor's death, 2836. GENEEAL INDEX. 3059 [References are to pages.] EEFERENCES TO "L. K. A." NOTES— ('Continued; j inheritance on dower, curtesy, statutory homestead, or allowance, 2836. inheritance tax on gift in contemplation of death, 2830. inheritance tax on money or property of estate which has bof]! lost or misappropriated since decedent's death, 2836. inheritance tax on property conveyed in consideration of support of grantor during life, 2836. inheritance tax on provision in lieu of dower, 2836. inheritance tax on stock in a domestic corporation belonging to the estate of a nonresident, 2840. inheritance tax, phy.sical presence or absence of personal property, or evidence thereof as affecting liability, 2842. inheritance tax, property of nonresident decedent, within the state apportioned to payment of debts or legacies which are exempt or subject to a reduced rate. ?840. inheritance tax retrospective operation, 2836. Injunctive relief as to cemetery property, burials, or removal of remains, 312. insanity of executor or administrator, 2324. insurance money, widow's right to support out of, 2352. insurance benefit certificate, testamentary power over, 2683. invalidity of agreement to administer and distribute a decedent's estate, without obtaining letters of administration, 366. in what capacity may an executor or administrator be sued for his personal tort, 1084. is an administrator or executor in such privity with a legatee, dis- tributee, or creditor, that he may assert a personal defense of the latter to a claim against the estate? 733. is a widow's, dower right in property allotted to her as a home- stead extinguished, or merely in abeyance? 664. is the right to take property by will or inheritance a natural, or a statutory right? 1536. joint and mutual wills, validity and probate of, 1633. jurisdiction of surrogate's court, 296. jurisdiction to admit to probate will not probated at domicile, 2703. lapsed legacies, 2695. law governing descent and distribution, 40. law governing distribution of fund collected or recovered for the negligent killing of a person, 1359. lease to commence in futuro right to possession of premises, 2479. legacy, enforcement of, 2676. legal status of adopted child, 14. legitimation of illegitimate child, 55. levy on interest of heir in ancestor's land, 1379. 3060 GENERAL INDEX. [References are to pagesl] BEFEEENCES TO "L. E. A." 'NOTES— (Continued) liability of administrator and his sureties for a debt owing by the former to the estate of his intestate, where the adminis- trator is hopelessly insolvent, 1119. liability of co-executor for default of one permitted to manage estate, 1118. liability of decedent's estate for funeral expenses, 1261. liability of estates for commissions of broker or agent, who sells property, 1121. liability of executor or administrator for carrying on business, 2504. liability of executor or administrator for compound interest, 1130. liability of executor or administrator for funeral expenses, 1118. liability of executor or administrator for loss of banK deposit, 1123. liability of executor or administrator for personal injury, negligent management of property of estate, 2504. liability of heirs for obligations of ancestor, 1340, 2679. liability of infant as executor or administrator, 1118. liability of separate estate of wife for lier funeral expenses,- 1261. limitation of estate upon the probate of a • will as a violation of the law against perpetuities, 1575. -- liability of sureties on general bond of guardian, as affected by a special bond, 2259. " liability of sureties on guardian's bond for defalcation prior to execution thereof, 2259. lineal descendants of illegitimate, right to inherit, 2211. lost or destroyed will, evidence to establish, 1721. lunacy proceedings, necessity of notice, 248i maintenance of ward, 171: may an instrument, aot on its face of a testamentary character, be shown by extrinsic evidence to -be such, so as to take effect as a will? 1546. mental incompetency Of executor or administrator, 2324. misnaming estate, effect of in granting letters of administration, 2308..' morphinism, effect of, on testamentary capacity, 1538. "natural heirs," meaning of term in will, 2648. necessity of administration in devolution of decedent's personality, 365. necessity of bond by guardian to make his acts valid, 168. necessity of presenting ward's claim against estate of deceased guardian, 706. necessity of word "heirs," in deed or devise in trust, to pass fee to trustee, 1436. nuncupative will, 1549. nuncupative will, what is "last sickness" permitting, 1549. GENERAL INDEX. 3061 [References are to pages.] REFERENCES TO "L. R. A." NOTES— (ConUnued) opinions of subscribing witnesses to will as to sanity or insanity of the testator, 1672. order of abatement to pay debts, as between demonstrative legacies and specific legacies, or devises, 1599. parol and extrinsic evidence to aid in the construction of wills, 1569. personal liability of executor or administrator for costs, 1051, 1120. position of representative as to realty of deceased partner, 1100. position of surviving partner in partnership real estate, 1102. power and authority of guardian of insane person, 250. power of disposition as indicative of quantum of estate devised, 2669. power of court to consent to conveyance by trustee, 2245. power of federal court to enforce its own judgment against a dece- dent's estate, 1051. power of guardian or committee to bind incompetent person or his estate by contract, 250. power of guardian to compromise or settle claims of ward, 174, 2245. power of guardian to redeem legacy, 2245. power of legislature to destroy dower, 660. power of surety company to act as guardian without bond, 168. power of surrogate's court to vacate decree or order, 296. presumption of burden of proof as to sanity with relation to wills, 1670. privilege of communications to attorney during preparation of will, 1675, 2749. probate court, jurisdiction, 296. probate of lost or destroyed wills, 2773. probate of wiU, 1633. probate of will, contest of, by the state, 1666. probate of will, validity of contract not to contest, 1664. probating will, effect of delay in, 1633. proof of signature by mark when attesting witnesses are dead or can not remember, 1639. property escheated is subject to charges as other property, 69. remainder after life estate, 2674. remedy of distributee as to accounting of which he had no notice, and at which he did not appear, 1200, 1345. removal of executors and administrators, 2328. removal to federal court of actions relating to estates of deceased persons because of separable controversy, 480. announcing benefit under will, 2672. respective rights of surviving partner and heirs of deceased part- ner, 1102. revocability of mutual will, 2621. 3062 GENERAL 1NDI5X. [References are to pages.] EEFEEENCES TO "L. R. A." -NOTBS— (Continued) revocation of letters of adminiBtration upon discovery of will, 2314, revocation of codicil as affecting will, 2625. revocation of probate as terminating appointment of administrator, etc., 2769. revocation of will by subsequent will, and revival of first by de- struction of second, 1551. revocation, revival, and republication of will, 1551, .2628. right of action for the negligent killing of a person is an asset of his estate, 520. right of adopted child to inherit property from a relative of its adoptive parents, 21. right of children in decedent's homestead, 610. right of continuing executor against former co-executor, 2479. right of domiciliary executors to ancillary letters, 2480. right of devisee of encumbered real estate to exoneration at the expense of legatees of personal property, 1329. right of estate of one, entitled by will or statute to an allowance for support and maintenance, to accumulations undrawn and unexpended at the time of her death, 576. right of executor, after discharge, to sell real estate under a direc- tion in the will, 940. right of executor or administrator, as party ' ' aggrieved, " to ap- peal, 1780. right of executor or administrator to credit for amount paid to a surety company for going on an administration bond, 1218, 1222. right of executor or administrator to have judgment against the decedent set aside, 1050. right of executor to allowance of attorney's fee, 2508. right of executor to recover excessive payments made in mistake, 2528. right of guardian to remove incompetent or infant from state, 173. right of guardian to surrender policy in favor of ward, 2244. right of guardian to compromise infant's cause of action for per- sonal injuries, 2245. right of heirs in real estate of deceased partner, 1097. right of heirs to exemption of homestead from ancestor's debt contracted prior to its acquisition by him, 1329. right of insane person to institute proceeding by next friend, 255. right of lineal descendants of illegitimate to inherit through him, 2211. right of mother or reputed father to guardianship of illegitimate child, 165. right of nonresident to act as executor or administrator, 384, 393. GENERAL INDEX. 3063 [References are to pages.] EEFERENCES TO "L. R. A." NOTES— (Continued) right of one's creditors, or personal representatives, to make or control election for or against a will, or between different provisions of a will or statute, 1604. right to appoint testamentary guardian, 89. right to contest power of corporation to take or hold property, 1590. right to probate will after distribution of property, 2708. right to question power of corporation, to take by will, property in excess of its charter authority, 1590. right to recover for services rendered beyond statutory period of limitation upon breach of parol contract to make provision by will, 975. right to rents on lease of intestate's property, 1001. rights of administrator of deceased partner, 1100. sales under power in will, equitable conversion, 2457-8. separate property, does conveyance by husband to wife create, 1740. separate property, liability of, of wife, for her funeral expenses, 1740. Shelly 's case, rule in, 2674. signature of witnesses to will before the testator signs it, 1541. signing wills by marks, 1541. special power passing to administrator with the will annexed, 2459. specific performance of contracts against estate of decedent, 975. speeifie performance of contract to make a will, or to leave prop- erty, in consideration of services to continue during the prom- isor's lifetime as affected by brevity of period before the promisor's death, 975. statute providing for the allowance or recording of wills, admitted to probate in another jurisdiction upon the production of a duly authenticated copy, does not apply where the testator's domicile at the time of his death was within the state, 1691. succession or inheritance tax, 1767. succession tax, exemption of adopted children from, 1764. sufSciency of letter as will, 1540. sureties on guardian's bond, liability of for defalcation prior to the execution of, 2259. sureties on general bond of guardian, liability as affected by a spe- cial bond, 2259. termination of right to declare escheat by death of alien or trans- fer in his lifetime, 71. testamentary libel as claim against estate, 2406. testamentary capacity to make a will, 1538, 2625. testamentary capacity to make a will, setting aside part of, for lack of, 2600. 3064 GENERAL INDEX. [References are to pages.] EEFEEENCES TO "L. E. A." 1^0T'ES—(ConUnuedJ test of mental capacity to make contracts, 255. to compromise or settle claims of ward, 174. use, by a court of chancery of lunatic's property, 255. validity of acts done by an executor or administrator under letters testamentary or of administration afterwards revoked or held invalid, 403. validity of adoption without consent of natural parents, 2190. validity of deed by incompetent person, 255. validity of sale of expectancy by a prospective heir, 1343. validity of sale to surety on executor's bond, 923. validity of transactions between heir and ancestor relating to for- mer's expectancy, 1343. weight of testimony of subscribing witnesses against competency of testator, 1639. what assets pass to the administrator de bonisi non, 520. what assets will give jurisdiction to appoint administrator, 518. what constitutes a "family," under the homestead and exemption laws, 599. what constitutes undue influence, 1668. what is a sufficient execution, by will, of a power of appointment, 1540. what may be admitted to probate as a will, 1633. who are "next of kin," 40. who takes under gift to "husband,'.' "wife," or "widow," 2646. widow's right to dower in real estate of deceased partner, 664. widow's right to exemption or allowance for support out of per- sonal assets of estate of deceased husband, who was a non- resident, 573. widow's right to support out of insurance money, 2352. widow's right to support out of money recovered for negligent kill- ing of husband, 2352. will, gift as fraud on contract to make, 2616. will, sufficiency of letters as, 2625. will, writing name in body as signature, 2605. will, witness signing before testator, 2608. ■will, witness seeing testator sign, 2608. will, witness, trustee of charitable beneficiary, 2608. will, witness, when competency to be determined, 2608. wills, rule of election between inconsistent rights, 1604. EEFERENCES TO NOTES IN "AM. & ENG. ANN. CAS." acceptance of benefit under will as affecting right to attack its validity, 1666. administrators pendente lite, 1030. geneeaij index. 3065 [Seferences are to pages.]- EEFEBENCES tO NOTES IN: "AM. & ENG. AK^iST. GAS."— (Con- tinued) adopted cMld, right of, to inherit from persons other than adopt- ing parents, 50. advancements, doctrine of, in eases of partial intestacy, 1574. ancillary probate of will of resident, which has been probated abroad, 1692. appointment of administrator de bonis non after final settlement of estate, 386. bequests to a class as including persons dead before the making of a will, 1590. "blood relations," or "blood relationship," construction of terms, 1571. bond of guardian, additional and siibstituted, liability of sureties on, for past defaults, 225. charities, devise or bequest to churches as charitable uses, 1576. "children," when gift to, includes share of child en ventre sa mere, 1571. ■ - . codicil, reference by testator to his will, 1543. codicil, revival of will by, 1551. collateral attack on decree granting letters testamentary or of ad- ministration, 388. commitment of insane persons, due process of law in, 287. competency of plaintiff, as witness, in an action by physician against a decedent's estate, for services rendered to the de- ceased, 1858. conditional estate, words merely declaratory of purpose or consid- eration of devise as creating, 1601. contingent or conditional will, 1601. cuttiug down clear devise or bequest by clauses or expressions of doubtful import, 1573. cy pres doctrine, general charitable intent essential to application of, 1576. declaration of legatee or devisee as to mental capacity of testator, admissibility of, 1671. declaration of testator, admissibility of, upon issue of revocation of will which can not be found, 1677. declarations of testator not made at time of execution of will, admissibility of, on question of undue influence, 1539, 1677. declarations, subsequent, of testator on issue of revocation of will, admissibility of, 1552. deed, construction of instrument in form of, to become effective upon death of grantor, 1546. defect of trust, upon death of donor, without exercising power of revocation, 1435. devise of land, validity of oral agreement to make, 1546. 3066 6ENEEAL INDEX. [References are to pages.] EEFEEENCES TO NOTES IN "AM. & ENG. ANN. CAS."—(C(m' tinned) devise over of life estate with power of disposition, validity and effect of, 1595. distributive share of heir in real estate is chargeable with heir's indebtedness to estate either as against land itself or the pro- ceeds of a sale thereof, 1379. duty of executor or administrator to retain from his distributive share of estate the amount of his debt to the estate, 1029. "effects," testamentary gift of, includes realty when, 1567. "estate," restriction of testamentary gift, personalty, 1591. evidence of insanity of ancestors or kindred, admissibility of, on issue of sanity, 256. exceptions to, and interruptions of, statutes of non-claim, 749. foreign will probated abroad, conclusiveness of, in domestic courts, 1692. holographic will not wholly in handwriting of testator, 1548. holographic will, rule requiring to be found "among valuable papers," 1547 incorporation into will by reference, doctrine of, 1544. individual liabilities of personal representatives under original con- tracts founded on a new consideration, 1121. interested witness, or party to suit involving ward's estate or rights, guardian or next friend as, 220, 221. invalid clause in will, effect of, on clauses otherwise valid, 1574. "issue," and "lawful issue," construction of terms with reference to illegitimates, 1571. joint and mutual wills, Vjalidity and probate of, 1633. liability of foreign charitable corporations for inheritance on be- quests to them, 1769. murderer, succession by, to property of victim, 52. necessity and priority of administration upon estate of minors, 368. nuncupative will, statutory restrictions as to time of making, 1549. opinion evidence, admissibility of, as to mental capacity, of person to execute contract or deed, 255. parol evidence, admissibility of, to show whether living child was unintentionally omitted from will, 1708. perpetuities, effect of contemporaneous or prior interest, 1575. power of corporation to act as trustee, 1442. power of court to appoint eo-administrator against consent of per- sons entitled to administration, 382. power of executor to make oil and gas lease, 1001. precatory trusts, general rule as to creation of, 1436. predeceased child, right of representative of, to share in remainder given to children as a class, 1596. GENERAL INOEX, 3067 [References are to pages.] EEFEEENCES TO NOTES IN "AM. & ENG. ANN. GA.S."— (Con- tinued) presumption of undue influence arising from relation of man and mistress, 1673. probate, admission of will to, without first obtaining, by direct proceedings, annulment of letters already granted, 1633. probate court, jurisdiction of, to construe wills, 1634. real estate acquired by executor or administrator for benefit of estate, as. realty or personalty, 527. rents, profits, incomes, etc., of land, estate passing by devise of, 1590. revival of will by destruction of revoking will, 1551. revocation, dependent relative, doctrine of, 1551. revocation of testamentary gift of particular estate or interest as revocation of remainder or limitation over, 1596. revocation of will by divorce of testator, 1553. revocation of will by marriage and birth of issue, 1553. right of alien or nonresident to act as executor or administrator, 393. right of creditor to levy attachment on property of decedent's estate under a writ against the executor or administrator, 1075. right of devisees of land encumbered by testator to have such encumbrance discharged out of personalty to the disappoint- ment of legatees, 1329. right of former representative to bring suit in forma pauperis, 1044. right of legatee of distributee to sue for assets belonging to de- cedent's estate, 1330. right of persons sued by an executor or administrator to set ofE a claim against the deceased, not presented within the statutory period, 1065. right to and effect of administration on the estate of a person presumed to be dead, 313. right to take property by inheritance or will as natural right pro- tected by constitution, 40. settlement of decedent's estate in equity, 1236. signature of testator ' ' at end ' ' of will, 1541. situs of decedent's personal property for purposes of taxation, 1767. statutory revocation of will by testator's subsequent marriage, ex- tent to which widow's interest is affected thereby, 1553. subscription by witnesses to will in "presence" of testator, what constitutes, 1541. subscription to will by testator and witnesses, order of, 1541, subscription to will by witnesses, sufficiency of, 1541. Probate Sup. 56. 3068 GENEEAL INDEX. [References are to pages.] REFERENCES TO NOTES IN "AM. & ENG. ANN. CAS."— (Con-: tinned) succession-tax acts, prospective or retrospective operation of, 1768. succession-tax acts, time for taxing future estates under, 1767. succession tax, liability of transfer of United States, and other gov- ernmental, bonds or securities to, 1769. succession tax on money paid in compromise of contest of will, 1769. succession-tax statute, exemption clauses of, are constitutional, 1764. succession taxes, constitutionality of, 1763. "survivor," when construed to mean "others," 1571. testamentary capacity, opinions of subscribing witnesses as to, 1708. testamentary disposition of child, right of mother to make, 1536. unnatural or unreasonable character of will as evidence of undue influence, 1673. valid testamentary disposition, requisites of, 1540. validity of acts of executor de son tort by subsequent grant to him of letters of administration, 388. validity of deed by executor or administrator to person other than the purchaser, 946. validity of will making no disposition of property, 1633. REFERENCES TO NOTES IN HENNING'S GENERAL LAWS act providing for the restoration to capacity, of persons adjudged to be insane, who have no guardians, and who are not con- fined at the state asylum for the insane, 257. alienation of homesteads of insane persons, 651. a statute which imposes an inheritance tax on foreign corporations is constitutional, 1763. corporation may act as executor or guardian, 246. establishment of asylums for the insane, 286. for reference to decisions concerning the inheritance-tax laws of various states, 1767. reference to statutes which it is assumed the California inheritance- tax law of March 20, 1905, fully supersedes, 1766. REFERENCES TO NOTES IN KERR'S CAL. CYC. CIV. CODE after-acquired property, wills pass estate to, 1602. after-born child, share of, out of what portion of estate to be paid, 1579. after-born child, unprovided for, right of, to succeed, 1579. aliens may inherit when, and how, 53. ambiguous and doubtful expressions, explanations of, by recitals in the wiU, 1571. annuities commence at the testator's decease, 1601. GENERAL INDEX. 3069 fReferences are to pages.] REFEEENCES TO NOTES IN KERB'S CAL. CYC. CIV. CODE— (Continued) antecedent will, when not revived by revocation of subsequent will, 1551. appointment of guardian by will, 91. bequest of interest or income of certain fund, income accrues thereon from testator's death, 1593. capacity to take by will, 1590. charitable bequests, limitation as to time and amount, 1576. child en ventre sa mere, 1579. classes, devise or bequest to, 1590. clear and distinct devise, when not affected, 1573. codicil to holographic wills, 1547. community property, distribution of, on death of either spouse, 1737. community property, distribution of, on death of husband, 1734. community property, effect of deed to husband and wife, where system of, prevails, 1739. community property, management, control and disposition of, 1738. community property, succession to, 1736. community property, what constitutes, 1733. conditional devises and bequests, 1601. condition precedent in a will, 1601. condition subsequent in a will, 1601. construction of "aforesaid" in will, 1567. construction of "between" in will, 1567. construction of "children" in will, 1567. construction of "cousin" in will, 1567. construction of "decedent" in will, 1567. construction of "family" in will, 1567. construction of "give" in will, 1567. construction of "grandchildren" in will, 1567. construction of "herein" In will, 1567. construction of "nephew" in will, 1567. construction of "niece" in will, 1567. construction of "ornaments" in will, 1567. construction of "property" in will, 1567. construction of "pro rata" in will, 1567. construction of "residue" in will, 1567. construing parts of will in relation to each other, 1571. contingent or conditional will, 1601. conversion of real property into money, effect of, when directed to be made by the will, 1591. conveyances from person claiming by succession, when not impaired by devise from whom succession is claimed, 1606. 3070 GENERAL INDEX. [References are to pages.] REFERENCES TO NOTES IN KERR'S CAL. CYC. CIV. CODE— (Continued) death of devisee of limited interest before testator's death, effect of, 1609. death of devisee or legatee before testator, effect of, 1609. death of legatee before testator, lineal descendants take estate, 1607. descent to murderer, 52. devise of fee in lands, words which will pass, 1591. devise or bequest of all real or personal property, or both, what passes by, 1590. devise to more than one person, vests in them as owners in com mon, 1606. devises, etc., to a person on attaining majority, will be presumed to vest at testator's death, 1606. distribution of common property on death of husband, 42. distribution of common property on death of wife, 42. execution and attestation of wills, generally, 1540. foreign wills, 1550. holographic wills, 1547. inheritance by adopted children, 49. inheritance by and distribution among kindred of half blood, 48. inheritance by father, 50. inheritance by, through, or from illegitimates, 55. inheritance by wife, 45. inheritance from or through mother, 55. intention of testator, ascertainment of, where will is uncertain, 1569. intention of testator, instructions construing will according to, 1678. interest upon legacies, 1598. interpretation of wills, rules of, generally, 1568. intestacy to be avoided, 1574. intoxication as affecting testamentary capacity, 1538. laud, devises of, how construed, 1590. laws governing validity and interpretation of wills, 1550. legacies are controlled by testator's intention, 1590. legacies, specific, demonstrative, annuity, residuary, and general, 1590. legacies, vest in legatees as owners in common when, 1606. legacies, when due and deliverable, 1598. legatees, contribution among, 1599. letters of guardianship may be granted by judge at chambers, 164. liability of beneficiaries, for testator's obligations, 1599. marriage of a man, effect of, on his will, 1553. marriage of a woman, effect of, on her will, 1553. mistakes and omissions in will, 1569. GENERAL INDEX. 3071 [References are to pagesj EEFEEENCES TO NOTES IN KEEB'S CAL. CYC. CIV. CODE— (Continued) mutual or conjoint wills, 1549. nuncupative will, how executed, 1549. nuncupative will, requsites of valid, 1549. order of resort to property of testator for payment of legacies, 1598. payment of .debts, effect of provision by will, when insufficient, 1599. payment of debts, entire state of intestate chargeable with debts, except when otherwise provided for, 1599. payment of debts, order of resort to estate for, 1599. power to devise, how executed under the will, 1590. power to make will generally, 1536. pretermitted children, when not to succeed to estate, 1579. probate of foreign wills, proceedings and proof on production of, 1691. proceedings on adoption, 11. procedure where succession is not claimed, 40. property escheated to state, 69. republication of will by codicil, 1543. residuary clauses in a will, 1596. revocation by subsequent will, 1551. revocation of will, agreement for sale of property disposed of by will is not, 1551. revocation of will as revoking all codicils, 1551. revocation of will, conveyance when a, 1551. revocation of will, conveyance when not, 1551. revocation of will, effect of subsequent marriage followed by birth of a child, to revoke a, woman's will, 1553. revocation of will, evidence of, 1552. revocation of will executed in duplicate, 1551. revocation of will, marriage of a man, effect of, 1553. revocation of will, mortgage or other Hen is not, 1551. revocation of will, application of statutory provisions, 1551. revocation of written will, 1551. separate property of the wife and of the husband, 1740. several testamentary instruments, when taken and construed to- gether, 1540. specific legacy for life, delivery of inventory of property to second legatee, 1593. subscribing witnesses to will, competency of, 1542. succession to, and distribution of, property of intestate, 1590. sufficiency of acts of acknowledgment of illegitimate child, 56. technical words, effect, 1567. technical words in will, not necessary, 1567. 3072 GENERAL INDEX. [References are to pages;] EEPEEElsrCES TO J^OTES IN KERB'S CAL. CTC. CIV. CODE— (Continued) testamentary capacity as affected by age, ill health, etc., 1539. testamentary capacity, generally, 1538. testamentary disposition to ' ' decedents, ' ' how title vests under, and effect of, 1571. testamentary disposition to "family," how title vests under, and effect of, 1571. testamentary disposition to "heirs," how title vests under, and effect of, 1571. testamentary disposition to "issue," how title vests under, and effect of, 1571. testamentary disposition to "legal representatives," how title vests under, and effect of, 1571. testamentary disposition to "nearest of kin," how title vests under, and effect of, 1571. testamentary disposition to "nearest relations," how title vests under, and effect of, 1571. testamentary dispositon to "next of kin," how title vests under, and effect of, 1571. testamentary disposition to '^personal representatives," how title vests under, and effect of, 1571. testamentary disposition to "relations," how title vests under, and effect of, 1571. testamentary dispositon to "representatives," how title vests under, and effect of, 1571. testator's obligations, liability of beneficiaries for, 1599. title to specific devises and legacies passes by will, possession only in personal representative, 1593. unnatural and inequitable wills, 1538. unsoundness of mind, as affecting testamentary capacity, 1538. will of married woman, 1540. wills, elements of, formalities as to execution, 1540. wills procured by fraud, undue influence, duress, etc., will be denied probate when, 1668, witness as devisee, when gift to, is void, 1590. witnessing execution of will, formalities as to, 1542. words in will, generally to be given their ordinary and grammatical sense, 1567. words in will referring to death or survivorship, effect of, 1567. words of will are to be given effect rather than an interpretation rendering them inoperative, 1569. GENERAL INDEX. 3073 [References are to pages. 1 REFERENCES 'TO NOTES IN " KERB'S CAL. CYC. CODE dV. PEOC." concerning public administrators, 1505. contest of will after probate, citation to be issued to parties inter- ested, executors or administrators, etc., upon filing, 1703. contest of will after probate, limitation of time, 1704. corporation may act as guardian of estates, 165. corporation may be appointed to act as administrator, 1505. corporation may become a surety on a guardian's bond, 221. duty of public administrator as to moneys of estate, escheats, etc., 1509. evidence upon contest of wills, generally, 1708. grounds of contest, and opposition to probate, 1667. guardian and ward, in general, 229. guardian of insane and other incompetent persons, 260. hearing proof of will, 1633. heirs or personal representatives may sue for the death of one, not a minor, caused by the wrongful act of another, 1739. holographic wills, how proved, 1643. in case of death of an executor or administratbr, his personal rep- resentative to present his account, 1228. jurisdiction of probate court over estate, 1635. mortgages and leases of real estate by guardians, 194, 195. no change in law in case of homestead selected from community property, 601. nonresident guardian and ward, 198. nuncupative will, proof of, 1633. order of probate sale of real estate must contain what, 186. persons who may appear and contest a will at the hearing of pro- bate, 1665. petition and notice for probate, 1633. petition for probate, hearing of before a, jury, when jury is de- manded, verdict, judgment, etc., 1633. petition to revoke probate of will, when to be tried by a jury, 1707. probate judgments, conclusiveness of, 1642. probate- of will, when conclusive, 1641. proof of writings by subscribing witnesses, in general, 1671. repeal of section authorizing court to appoint an attorney for minor or absent heirs, devisees, legatees, or creditors, 1327. revocation of probate of will, effect of, 1709. sale of property of minors and disposition of the proceeds, 183. service of process on guardian, 178. service of process on the guardian of an infant, insane, or incom- petent person, 258. subscribing witnesses to be produced and examined upon hearing of petition for probate, 1639. 3074 GENERAL INDEX. [References are to pages.] EErEEENCES TO NOTES IN "PEOB. EEP. ANN." , capacity of corporation to take by will, 1590. misnomer in gift to legatee, 1572. municipal corporation as legatee or devisee, 1590. parol and extrinsic evidence to aid in the construction of wills, 1569. EEIMBUESEMENT of special administrator, 465. right of sureties on administration bonds to, 443, EELEASE (See Eeferences to "L. E. A." notes) of surety on administration bond, 443. of surety on administration bond, what does not, 444. EELEASE OF DEBT (See Eeferences to "Am. Dec." notes) EELINQXJISHMENT of curtesy by husband, 664. EEMAINDEE in fee, after homestead, is subject to administration, 527. interests in, are not affected by death of devisee or legatee, 1564. EEMOVAL court will not direct letters of guardianship to be revoked without notice to the guardian, 217. form of afSdavit for, of executor or administrator, 482. form of allegations of cause for, of executor or administrator, 487. form of order of, of executor or administrator for neglect to file inventory, 511. form of order to show cause why administrator should not be removed for not causing after-discovered property to be ap- praised and inventoried, 513. guardian may be removed for failure to account, 218. guardian should be removed when, 217, 2256. newly-appointed guardian is a necessary party on appeal when, 21i of conservator, 253. of executor or administrator for neglecting to give notice to credit- ors, 690. of executor or administrator for neglecting to give notice to credit- ors, form of order of, 690. of executor or administrator, order of, and its effect, 498. of executor or administrator, petition for, sufSciency of, 493. of executor or administrator, what is cause for, 494, 2326. GENERAL INDEX. 3075 [References are to pages.] "KEUOYAl,— (Continued) of executor or administrator, what is no cause for, 497, 2328. of former guardian and appointing his successor, presumption, 218. of guardian, 217. of guardian, and surrender of estate^ 158. of guardian, necessity of notice to confer jurisdiction, 217. of guardian, record must show that it was based on statutory ground, 217. of nonresident executor for absence, 496. of nonresident ward's property, 153, 154. order of, of guardian, must be upon what grounds, 217. power of court to remove guardian, 217, 2256. probate judge at chambers may remove guardian, 218. proceedings on, of nonresident ward's property, 154. revocation of letters of guardianship without notice is error, 217. EEMOVAL OF PE0CEEDING8 in guardianship matters, from one county to another, 118, 120. in guardianship matters, requisites of petition for, 118. order directing, shall be entered when, 119. order fixing time of hearing on petition for, 121. order for, 121. petition for, 120. EEMOVALS AND SUSPENSIONS (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) liability of, for payment of debts, 1263. EENTS, ISSUES, AND PEOFITS (See Eeferences to "L. E. A." notes) liability of representative for, 1122. EENUNCIATION (See Eeferences to "Am. St. Eep." notes) form of, by person named in will, of right to letters testamentary, 1616. form of executor's, of compensation, 1115. of compensation by executor or administrator, 1136. of right to letters testamentary by faUure to apply for probate of will, 1617. REPLEVIN action against executor or administrator in, 1083. action by executor or administrator in, 1060. 3076 GENERAL INDEX. [References are to pases.]; EEPOET ; (See Collateral-inheritance tax; Partition in connection with distribution) form of account current and report of executor or administrator, 1165. of appraisers in proceedings to set apart homestead, 590, 591. , of conservator, exceptions to, 253. of guardian of insane person, 253. to be filed by public administrator, 1504. EEPTJBLICATION OF "WILL (See References to "Am. St. Eep^" notes) by codicil, 1522. EEQUEST IN WEITING "for appointment of administrator, Z6al ' form of, for another's appointment as administrator, 364. , EESIDENCE not essential to probate homestead, 620. EESIDUAET CLAUSES (See Wills, construction and interpretation of) ■; j EESIDXJABY LEGACIES (See Legacies; Eeferences to "L. B. A." notes) EESIGNATION court to appoint successor in ease of, of executor or administrator, 470. - ' • '■ form of notice of intention of representatiye to resign, 471. form of resignation of, 472. of executor or administrator, 470, 491. of guardian and surrender of estate, 158. of trustee under wUl, who is qualified as executor, 1429. EES JUDICATA (See Eeferences to "Am. Dec." notes; Eeferences to "L. E. A." notes) application of, to orders to sell real estate of decedent, 954. EESTOEATION OF EECOEDS form of notice of application for, by order of court, and of time and place fixed for hearing, in case of entire destruction, 1816. form of notice of application for, by order of court, and of time anct place fixed for hearing, in ease of partial jdestruction, 1817. form of order requiring notice of application, for, and of the, set- ting of said application for hearing, 1815. GENERAL INDEX. 3077 [References are to pages.] EESTORATION TO CAPACITY form of judgment of, 241. form of petition for, 240. of adjudged insane or incompetent person, application of statute, 256. of iAsane person, 289-292. powers of persons whose incapacity has been adjudged after, 284. proceedings for, 239. EETEOACTIVE ACTS irregularities in probate sales may be cured by, 925. RETUEN by public administrator, of condition of estate, 1510. of commissioners appointed to set off dower, 653. of inventory, what constitutes, 530. of sales of decedent's property, made under order of court, 920. of sales under power in will, confirmation of sales, 941. EETUEN OP PEOCEEDINGS for sale of real estate, 848. EETUEN OF SALE form of affidavit of posting notices of sale of real estate, 851. form of affidavit of publication of notice of time and place of sale of real estate, 852. form of, and account of sale of real estate^ and petition for order confirming sale, 849. form of, of personal property, and petition for confirmation and approval, 808. form of order fixing time for hearing on, 853". form of verification of return and account of sale, 851. EEVIEW none in equity, of contest of probate of will, 1683. of appointment for insane or other incompetent, 259. of orders granting or denying family allowance, 582, 583, REVIVAL OF -ACTION (See References to "L. E. A." notes) by executor or administrator, 1048. REVIVAL OF DEBTS ■ (See References to "Am. Dee." notes) 3078 GENERAL INDEX. [References are to pages.] REVIVAL OF WILL (See References to "Am. St. Eep. " notes; References to notes in "Am. & Eng. Ann. Cas.") REVOCATION (See References to "L. E. A." notes; Wills, revocation of) letters of guardianship can not be revoked without notice, 217. of probate will, effect of, 1709. procured by fraud, etc., may be declared void, 1515. REVOCATION OF LETTERS (See Letteks of administration) acts or neglect for which letters may be revoked, 1164. authority of representative to be revoked when, 1172. for disobedience of lawful orders, 1467. for failure to comply with order requiring further security to be given, 427. form of order revoking letters for contempt, and appointing some other person administrator, executor, or guardian, 1467. form of order to show cause why letters should not be revoked for failure to return account of sales, 881. for neglect of administrator to return inventory, 510. for neglect, waste, embezzlement, or mismanagement of estate, 1164. of administration, order denying petition for, is nonappealable, 1784. representative to account after, 1171. where will is subsequently found, 468. REVOCATION OF LETTERS OP ADMINISTRATION . form of citation to show cause against and relative to be appointed, 398. form of notice of hearing of petition for, 397. form of order for, and appointing a person having a prior right, 399. form of petition for, in favor of one having a prior right, 396. hearing of petition for, 399. how obtained, 395. prior rights of relatives crntitle them to revoke prior letters, 400. REVOCATION OF PROBATE (See References to notes in "Kerr's Cal. Cye. Code Civ. Proc. "; Wills, contest of, after probate) REVOCATION OF WILL (See References to "Am. St. Rep." notes; References to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cye. Civ. Code"; Sections of the Civil Code of California, ar- ranged according to subject-matter; Wills, revocation of) GENERAL INDEX. 3079 tReferenees are to pages.] BIGHT of insane person, 254, 288. of ward, 218-221. to homestead, 599. EIGHTS AND LIABILITIES (See Heirs) EIGHTS A.ND EEMEDIE8 (See Eeferences to "Am. St. Eep." notes) EULES OF INTEEPEETATION (See Wills, construction and interpretation of) EULES OF PEACTICE (See Probate practice and procedure) what provisions of code constitute, 1464. SALE IN GENEEAL (See Notice; Notice of hearing; Notice of sale; References to ' ' Am. St. Eep. ' ' notes ; Eeferences to notes in ' ' Kerr 's Cal. Cyc. Code Civ. Proc. "; Sale of mines; Sale of personal property; Sale of real estate; Sections of the Civil Code of California, arranged according to subject-matter) appeal, affirmance of order of sale on, 953. appeal, appealable orders, 951, 2459, 2461. appeal, effect of decree on, 953. appeal, in general, 951, 2459, 2461. appeal, law of the case, 954. appeal, nonappealable orders, 951. appeal, parties interested or aggrieved, 952. appeal, parties not interested or aggrieved, 952. appeal, record on, 953. appeal, res adjudicata, 954. appraiser, sale to, voidable only, 929, 2455. at common law, 890. attacking, collateral attack in general, 949, 2462. attacking, collateral attack, order can not be questioned on, 950. attacking, collateral attack, order is good on, 950. attacking, collateral attack, presumptions on, 950. attacking, direct attack in general, 948. attacking, distinction between direct and collateral attack, 948. bona fide purchasers, how affected by adverse possession, 928. bona fide purchasers, rigLts of, 928, 2454. but one petition, order, and sale must be had when, 791. by agent of absentees, 1409. 3080 GENERAL INDEX. IReferences are to pages.] SALE IN GENERAL— fComtinue^; completion of contract for, in case of death, 956. confirmation, action to set aside, 946. confirmation, authority to confirm, when presumed, 943. confirmation, discretion of court as to, 943, 2459, confirmation, effect of order of, 945. confirmation, effect of refusal to report sale for, 945. confirmation, no power to confirm when, 944. confirmation, objections to, 945, 2460. confirmation, refusing, effect of order, 945. confirmation, when not required, 944. confirmation, when required, 944. conveyance, conditions not to be imposed, 947. conveyance, in general, 946. conveyance, is individual deed when, 947. conveyance, is void when, 947. conveyance, mandate to compel, 948. conveyance, may be ordered when, 946. conveyance, title carried by, 947. estate is chargeable with what debts, no priority, 789. exchange is not a sale, 926. executor purchasing at his own sale generally prohibited, 922, 2452. foreign executor, sale by, 926, 2454. fraudulent sale, validity of, 921, 2452. hearing, demand for jury trial of issues, in opposition to sale, 914. hearing, necessity of findings on order for sale, 915. hearing, questions not considered on application for an order to sell property, 915. illegal contracts with executor or administrator, as to, 924, 2453. irregularities in, cured by retroactive acts, 925, 2453. irregularities in, effect of, 921. irregularities in sale, 921, 2452. is not authorized when, 898. is utterly void when, 930. is voidable but not absolutely void when, 929, 2488. jurisdiction, basis of, 888. jurisdiction, nature and extent of, 888. jurisdiction, not dependent on truth of petition, 889. jurisdiction, when acquired, 888. law governing, in general, 889. law governing, statute of frauds, 890. law governing, statute of limitations, 890. limitation of actions for vacating sale, 943. mutual mistake of fact, effect of, 921, 2452. necessary sale is valid when, 929. no sales valid, unless made under order of court, 790. GENERAL INDEX. 3081 [References are to pages.] SALE IN G'E'N'EB.AJj— (Continued) nonappealable orders, what are, 1785. notice after appeal from order of sale, 915. notice of sale, in general, 917, 2450. notice of sale, publication of, 917, 2450. nunc pro tunc order of sale, 919. order of sale, in general, 915, 2450. order of sale, validity of, 916. order to show cause, notice of hearing, in general, 913, 2449, order to show cause, service of notice of, 914. ordering resale, 919, 2451. petition for order of sale, 790. petition for order of sale, amendment of, 905. petition for order of sale, by creditor, 906. petition for order of sale, condition of property, 902. petition for order of sale, defects in, 899, 2446. petition for order of sale, defects in, cured by order, 905, 2447 petition for order of sale, defects in, not cured by order, 905, petition for order of sale, demurrer to, 907. petition for order of sale, description of property, 903. petition for order of sale, effect of laches in filing, 900. petition for order of sale, in general, 898. petition for order of sale, may be made when, 900. petition for order of sale, mistakes in, 899, 2446. petition for order of sale, necessity for sale, 901, 2446. petition for order of sale, omissions in, 899, 2446. petition for order of sale, opposition to, 907. petition for order of sale, parties to the proceedings, 901. petition for order of sale, reference to other papers, 903. petition for order of sale, verification of, 904. private sale of decedent's property, 920, 2451. proceedings are statutory, 887. proceedings, in general, 886. proceedings, policy of law as to titles, 887. publication of notice of sale, 917, 2450. public sale of decedent's property, 919. purchase by executor at Ms own sale, generally prohibited, 922, 2452. purchase by executor at his own sale, invalidity of, 923. purchase by executor at his own sale, not void when, 924. purchase by executor at his own sale, remedy against, 923. return of sales, practice on, 920. rights of heirs, by action, to set aside sales, 933, 2456. rights of heirs, in general, 931. rights of heirs under guardianship, 933. rights of minor heirs, by action, to set aside sales, 934. 3082 GENEEAIi INDEX. tEeferences are to pages.] SALE nsr G'EVrEB.AIj— (Continued) sale for best interests of the estate, 912, 2449. sale for payment of debts, contesting debts on hearing, 909. sale for payment of debts, "demand" when not a debt or claim, 910. sale for payment of debts, expenses of administration, 910. sale for payment of debts, in general, 908, 2448. sale may be made at private sale when, 919, 920. sale must be made at public auction when, 919. sale of community interests, 894. sale of contracts for purchase of realty, 895. sale of partnership interests, 894. sale of pretermitted child's interest, 942. sale to pay funeral expenses, 911. sale to pay legacies, 911. sales by foreign executors, 926, 2454. sales by guardian, 925. sales without order of court, effect of, 926. specific devises to contribute to payment of debts, 911, 2448. substitution of purchasers, 924. title conveyed by sale, 927. under codes and statutes, 890. under power in will, agent to sell, 937. under power in will, compensation of agent to sell, 937. under power in will, confirmation of, 941. under power in will, devesting estate, 936. under power in will, devise in trust with power to sell, 939. under power in will, direction coupled with trust, effect of, 940. under power in will, discretion of executor, 936, 2457. under power in will, election for reconversion, 938. under power in will, equitable conversion, 938, 2457. under power in will, estoppel of purchaser, 937. under power in will, for best interests of estate, 936. under power in will, in general, 934. under power in will, no implied power when, 935. / under power in will, particular sales under, 941. under power in will, power passes to administrator with will an- nexed, 940, 2458. under power in will, return of, 941. under power in will, status of purchaser, 937. under power in will, to executor who failed to qualify, 941. under power in will, validity of, 937. vacating sales, procedure, 931, 2456. void sales, 2455. voidable sales, 929, 2455. GENERAL INDEX. 3083 [References are to pages.] SALE OF MINES (See Sections of the Code of Civil Procedure of Californiaj arranged according to subject-matter) and mining interests, 893, 2437. conditions of sale, 2439. mines may be sold how, 813, 2437. order of sale, when and how made, 814, 2437, 2438. order to show cause, how made, and on what notice, 814, 2438. petition for sale, who may file, and what to contain, 813. proceedings to conform with what provisions, 815. service of order, 2438. SAIiE OF PERSONAIi PEOPBETT (See Agents for absent, inteebsted parties; Sale in general; Sections of the Code of CivU Procedure of California, arranged according to subject-matter) for best interests of estate, on hearing of application for sale of real property, 804. how to be made, 803. order to sell personal property, 801. partnership interests and choses in action, how sold, 802. perishable and depreciating property to be sold, 797. sale of choses in action, 897, 2445. what property to be sold first, 802. SALE OF EEAL ESTATE (See Guardian and vstard; Eeferences to "L. E. A." notes; Sale in general; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) account of sale to be returned, 881. administrator, executor, and witnesses may be examined, 831. agent may be employed, 2443. appealable orders, 1776. bids at private sale, when and how received, 843. by executor or administrator, 2443. by guardian, is valid when, 188. by guardian, is void when, 188. by guardian, validation of, 187. commission to real estate agent, 2443. confirmation of sale, 848. contract for purchase of land, conditions of sale, 874. contract for purchase of land, executor to assign contract, 877. contract for purchase of land, may be sold how, 873. contract for purchase of land, purchaser to give bond, 875. contribution among devisees and legatees, 872. conveyances must be executed to purchaser when, 862. Probate Sup. S7. 3084 GENERAL INDEX. [References are to pages.] SALE OF REAL ESr ATE— (Continued) executor, etc., not to be purchaser, 883, 2452. executor or administrator may contract with real estate agent, 2443, executor or administrator may sell property when, 822, 2443. form of additional bond to be given on, 415. form of notice of, at private sale by guardian of i;:2ompetent per- son, 237. form of notice of, by guardian of incompetent person, 236. form of order to show cause why order of sale of incompetent per- son's real estate should not be granted, 238. form of order to show cause why order of sale of insane person's real estate should not be granted, 237. fraudulent sales, 879. hearing after proof of service, presentation of claims, 830. holder of mortgage or lien may purchase land, receipt as payment, 878. interested parties may apply for order of sale, 840. law governing, 889, 2444. liability of estate for debts, 871. limitation of actions for vacating sale, etc., 880. made by guardian, irregularity in, may be cured by subsequent legislation, 187. misconduct in sale, liability for, 879. ninety per cent of appraised value must be offered at private sale, 847. notice of hearing upon return of proceedings, 848. notice of postponement of sale, 868. notice of sale of land, 841. objections to confirmation of sale, hearing, 856. of mortgaged premises of decedent, holder as purchaser, 775. of property of minors, and disposition of proceeds, 183. of ward's property by guardian, 125, 134-142. of ward's real estate, petition for must contain what, 183. one description of realty is sufficient, 1463. order of confirmation, to be made when, 856. order of confirmation, what to state, 867. order of sale, must contain what, 186, 833. order of sale, when to be made, 833. order to persons interested to appear, 827. payment of debts, etc., according to provisions of will, 868. petition for order of sale, form of, 840. private sale, how made, and notice, 843. public auction or private sale, 833. purchase-money of sale on credit, how secured, 847. real estate agent may be employed, 2443. real estate or any part thereof to be sold when, 832. GENERAL INDEX. 3085 [Eeferences are to pages.] SALE OF EEAL ESTATE— ('ConiinMed; resale may be ordered when, 848. return of proceedings of sale, 848. sale may be postponed when, 868. sale of homestead under United States laws, 894. sale of property subject to lease, 893. sale of property under mortgage or other lien, 877, 896. sale of property under mortgage or other lien, application of pur- chase-money, 896. sales without order, under provisions of will, 869. service of order to show cause, assent, publication, 829. setting aside sale, and ordering a new sale, 848. time and place of sales, 842. to what cases statute of limitations for vacating sale, etc., does not apply, 880. verified petition for sale must contain what, 822. where personalty is insufficient, 892. where provision by will is insufficient, 871. SANITY of testator, presumption as to, 1640. SATISFACTION (See Legacies) SEAL effect of omitting, 347. necessity of, to letters, 346. SECTIONS OF THE CIVIL CODE OF CALIFORNIA, AERANGED ACCORDING TO SUBJECT-MATTER abandoned child (§ 224), 2188. adoption (§§221-230), 1-10. adoption of children (§224), 2187. child in orphan asylum (§ 224), 2188. community and separate property (§§ 162-164, 166, 169), 1729-1731. guardianship of minors (§§236-257), 75-84. homesteads of insane persons (§§ 1269a-1269e), 646-649. insane persons, homesteads of (§§ 1269a-1269c), 646-649. legacies and wills (§§ 1357-1377), 1581-1588. orphan asylum, child in (§ 224), 2188. promiscuous provisions, accumulation of income (§ 724), 1801. promiscuous provisions, application of income to support, etc., of minor (§726), 1802. promiscuous provisions, children born after dissolution of marriage (§ 194), 3800. prpmiscuous provisions, children of annulled marriage (§ 84), 1801. 3086 GENERAL INDEX. [References are to pages.] SECTIONS OF THE CIVIL CODE OF CAXiIFORNIA, ARRANGED ACCORDING TO SUBJECT-MATTER— fComtinMed; promiscuous provisious, contingent remainder in fee (§ 772), 1804. promiscuous provisions, effect of will upon gift (§ 1152), 1806. promiscuous provisions, investment of money by trustee (§ 2261), 1805. promiscuous provisions, involuntary trust resulting from negligence, etc. (§2224), 1805. promiscuous provisions, legitimacy of children bom in wedlock (§ 193), 1799. promiscuous provisions, mere possibility is not an interest (§ 700), 1804. promiscuous provisions, minors, who are (§ 25), 1799. promiscuous provisions, posthumous children (§ 698), 1800. promiscuous provisions, powers of persons whose incapacity has been adjudged (§ 40), 1803. promiscuous provisions, purchase by trustee of claims against trust funds (§ 2263), 1805. promiscuous provisions, qualities of expectant estates (§ 699), 1804. promiscuous provisions, suspending power of alienation (§ 715), 1803. promiscuous provisions, tenure by which homestead is held (§ 1265), 1804. promiscuous provisions, trustee's influence not to be used for his advantage (§ 2231), 1805. promiscuous provisions, who may dispute legitimacy of child (§ 195), 1800. promiscuous provisions, who may own property (§ 671), 1799. promiscuous provisions, will includes codicil (§ 14), 1805. separate and community property (§§ 162-164, 166, 169), 1729-1731. succession (§ 672), 36. succession (§§ 1383-1407), 23-27. wills, and legacies (§§1357-1377), 1581-1588. wills, execution and revocation of (§§1270-1313), 1514-1534. wills, interpretation of (§§ 1317-1351), 1555-1566. SECTIONS OF THE CIVIL CODE OF CALIFORNIA, ARRANGED NUMERICALLY, section 14, will includes codicil, 1805. section 25, minors, who are, 1799. section 40, powers of persons whose incapacity has been adjudged, 1803. section 84, children of annulled marriage, 1801. sections 162-164, 166, 169, community and separate property, 1729- 1731. section 193, legitimacy of children born in wedlock, 1799. GENERAL INDEX, 3087 [References are to pages.] SECTIONS OF THE CIVIL CODE OF CALIFORNIA, AEEANGED NTJMEEICALLY— ('Comtimtted; section 194, children born after dissolution of marriage, 1800. section 195, who may dispute legitimacy of child, 1800. sections 221-230, adoption, 1-10. section 224, .adoption of children, 2187. sections 236-257, guardianship of minors, 75-84. section 671, who may own property, 1799. section 672, succession, 36. section 698, posthumous children, 1800. section 699, qualities of expectant estates, 1804. section 700, mere possibility is not an interest, 1804. section 715, suspending power of alienation, 1803. section 724, accumulation of income, 1801. section 725, other directions as to accumulation of income, when void in part, 1801. section 726, application of income to support, etc., of minor, 1802. section 772, contingent remainder in fee, 1804. section 1152, effect of will upon gift, 1806. section 1265, tenure by which homestead is held, 1803. sections 1269a-1269c, homesteads of insane persons, 646-649. sections 1270-1313, execution and revocation of wUls, 1514-1534. sections 1317-1351, interpretation of wills, 1555-1566. sections 1357-1377, legacies and wiUs, 1581-1588. sections 1383^1407, succession, 23-70. section 2224, involuntary trust resulting from negligence, etc., 1805. section 2281, trustee's influence not to be used for his advantage, 1805. section 2261, investment of money by trustee, 1805. section 2263, purchase by trustee of claims against trust fund, 1805. SECTIONS OF THE CODE OF ClYIL PEOCEDUEE OF CALIFOE- NIA, AEEANGED ACCOEDING TO SUBJECT-MATTEE accounting and settlements (§§ 1622-1639), 1161-1196, 2513-2514. accounts of trustees; distribution (§§ 1699-1703%), 1427-1433. agents; discharge of representative (§§ 1691-1698), 1407-1411. appeal (§§57, 963, 965, 966), 1774, 1775. appraisement, inventory, and possession of estate (§§ 1443-1454), 501, 516. claims against estates (§§ 1490-1514), 668-693, 2400, 2401. confirmation of sales of real estate (§§ 1536-1576), 822-883. conveyances and transfers (§§ 1597-1607), 956-967. disqualification of judges; transfers (§§ 1430-1433), 475-479. distribution; accounts of trustees (§§ 1699-17031/2), 1427-1433, 2572. distribution and partition (§§ 1675-1686), 1385-1391, 2568. 3088 GENERAL INDEX. [References are to pages.] SECTIONS OF THE CODE OF CIVIL PROCEDURE OF CALIFOR- NIA, ARRANGED ACCORDING TO SUBJECT-MATTER— (Continued) distribution; establishment of heirship (§§1664-1670), 1297-1319, 2541-2543. embezzlement of property (§§ 1458-1461), 536-541. escheat (§§ 1269-1272), 61-68. estates of missing persons (§§ 1822-1822b), 1741, 1742! exempt property; support of family (§§ 1464-1470), 546-563. guardian and ward, miseellaneous provisions (§§ 1800-1810), 156-162, 2233. guardians and wards, nonresident (§§ 1793-1799), 151-155. guardians, powers and duties of (§§1768-1776), 123-133, 2228, 2229, 2265. guardianship of insane and other incompetents (§§ 1763-1767), 231- 242, 2264. guardianship of minors (§§ 1747-1760a), 99-122, 2227. guardianship, sales of property under (§§ 1777-1792), 134-150, 2230. heirship, establishment of; distribution (§§1664-1670), 1297-1310. homesteads (§§ 1474-1486), 589-594, 2358. jurisdiction of courts (§§ 1294, 1295), 293, 294. inventory, appraisement, and possession of estate (§| 1443-1454), 501, 516. letters, form of (§§ 1360, 1361), 341-343. letters of administration, granting of (§§ 1365-1370), 348-351, 2297. letters, petition and contest for (§| 1371-1379), 353-363. letters, petition and contest for (§ 1380), 2299. letters, revocation of (§§ 1383-1386), 395-400. letters testamentary and of administration with the will annexed (§§1348-1356), 322-332. liabilities and compensation of attorneys, executors, and administra- tors (§§1612-1619), 1110-1115, 2500-2502. management of estates, powers and duties of executors and admin- istrators (§§1581-1592), 1006, 1020. missing persons, estates of (§§ 1822-1822b), 1741, 1742. mortgages and leases (§§ 1577-1579), 977, 989, 2465-2468. nonresident guardians and wards (§§ 1793-1799), 151-155. oaths and bonds (§§ 1387-1406), 409-433. orders, decrees, process, etc. (§§ 1704-1724), 1455-1469, 2578-2580. partial distribution (§§1658-1662), 1274-1284, 2531-2532. partition and distribution (§§ 1675-1686), 1385-1391. payment of debts of estate (§§ 1643-1653), 1246-1255. possession of estate, inventory, and appraisement (§§ 1443-1454), 501, 516, 2332. powers, duties, of executors and administrators, and management of estates (§§ 1581-1592), 1006, 1020. GENERAL INDEX. 3089 [References are to pages.] SECTIONS OF THE CODE OF CIVIL PEOCEDUEE OF CALIFOR- NIA, AERANGED ACCOEDING TO SUBJECT-MATTER— (Continued) probate, contesting will after (§§ 1327-1333), 1693-1702. probate of foreign wills (§§ 1322-1324), 1684-1688. probate of lost or destroyed will (§§ 1338-1341), 1713-1720. probate of nuncupative wills (§§ 1344-1346), 1724-1728. probate of wills, contesting (§§ 1312-1318), 1645-1660. probate of wills, in general (§§ 1298-1309), 1612-1631. promiscuous provisions, executor or administrator, all acts of as, are valid until his power is revoked (§ 1428), 472. promiscuous provisions, executor or administrator may resign when; court to appoint successor; liability of out-goer (§ 1427), 470. promiscuous provisions, guardian, how appointed (§ 373), 1802. promiscuous provisions, infant, etc., to appear by guardian (§ 372), 1802. promiscuous provisions, letters must be revoked when (§ 1423), 468. promiscuous provisions, persons who can not testify (§ 1880), 1808. promiscuous provisions, power of executor, after revocation of let- ters (§ 1424), 469. promiscuous provisions, powers of superior judges at chambers (§ 166), 1807. promiscuous provisions, presumption as to survivorship (§ 1963), 1807. promiscuous provisions, publication, what is evidence of (§ 2010), 1806. promiscuous provisions, remaining administrator or executor to con- tinue when his colleagues are disqualified (§ 1425), 469. promiscuous provisions, service by mail, how made (§ 1013), 1806. promiscuous provisions, who to act when all acting are incompetent (§ 1426), 470. promiscuous provisions, will includes codicil (§ 17), 1805. public administrator (§§ 1726-1744), 1498-1504, 2585-2586. removals and suspensions (§§ 1436-1440), 481-489. sales, in general (§§ 1516-1519), 789-791. sales of mines, summary (§§ 152^-1533), 813-815, 2437-2439. sales of personal property (§§ 1522-1527), 797-804. sales of real estate, and confirmation (§§ 1536-1576), 822-883, 2443- 2444. special administrators (§§1411-1417), 453-460. support of family; exempt property (§§ 1464-1470), 546-563, 2346- 2348. suspensions and removals (§§ 1436-1440), 481-489. transfers and conveyances (§§ 1597-1607), 956-967. JJ090 GENERAL INDEX. [References are to pages.] SECTIONS OF THE CODE OF CIVIL PEOCEDUEE OF CALIFOB- NIA, AREANGED NUMEEICALLY section 17, will includes codicil, 1805. section 57, appeal, 1775. section 166, powers of superior judges at chambers, 1807. section 372, infant, etc., to appear by guardian, 1802, section 373, guardian, how appointed, 1802. sections 963, 965, 966, appeal, 1774, 1775. section 1013, service by mail, how made, 1806. sections 1269-1272, escheat, 61-68. sections 1294, 1295, jurisdiction of courts, 293, 294. sections 1298-1309, probate of wills, in general, 1612-1631. sections 1312-1318, contesting probate of wills, 1645-1660. sections 1322-1324, probate of foreign wills, 1684-1688. sections 1327-1333, contesting will after probate, 1693-1702. sections 1338-1341, probate of lost or destroyed will, 1713-1720. sections 1344-1346, probate of nuncupative wills, 1724-1728. sections 1348-1356, letters testamentary and of administration with the will annexed, 322-332. sections 1360-1361, form of letters, 341-343. sections 1365-1370, granting letters of administration, 348-351, 2297. sections 1371-1379, petition and contest for letters, 353-363. section 1380, petition and contest for letters, 2299. sections 1383-1386, revocation of letters, 395, 400. sections 1387-1406, oaths and bonds, 409-433. sections 1411-1417, special administrators, 453-460. sections 1423-1429, miscellaneous provisions, 468-473. sections 1430-1433, disqualification of judges and transfers, 475-479. sections 1436-1440, removals and suspensions, 481-489. sections 1443-1454, inventory, appraisement, and possession of es- tate, 501, 516, 2332. sections 1458-1461, embezzlement of property, 536, 541. sections 1464-1470, support of family; exempt property, 546-563, 2346-2348. sections 1474-1486, homesteads, 589-594, 2358. sfections 1490-1514, claims against estates, 668-693, 2400, 2401, sections 1516-1519, sales in general, 789-791. sections 1522-1527, sales of personal property, 797-804. sections 1529-1533, summary sales of mines, 813-815. sections 1536-1576, sales of real estate, and confirmation, 822-883, 2443-2444. sections 1577-1579, mortgages and leases, 977-989, 2465-2468. section 1580, summary sales of mines, 2437-2439. sections 1581-1592, powers, dvity of executor and administrator, and management of estates, 1006-1020. sections 1597-1607, conveyances and transfers, 956-967. GENERAL INDEX. 3091 tReferencea are to pages.] SECTIONS OF THE COBB OF CIVIL PEOCEDUEE OF CALIFOB- NIA, AEEANGBD NUMEEICALLY— fConiinoted; sections 1612-1619, liabilities and compensation of attorneys, ex- ecutors, and administrators, 1110-1115, 2500-2502. sections 1622-1639, accounting and settlements, 1161-1196, 2513- 2514. sections 1643-1653, payment of debts of estate, 1246-1255. sections 1658-1662, partial distribution, 1274-1284, 2531-2532. sections 1664-1670, establishment of heirship, distribution, 1297- 1319, 2541-2543. sections 1675,1686, distribution and partition, 1385-1391, 2568. sections 1691-1698, agents; discharge of representative, 1407-1411. sections 1699-1703y2, acts of trustees; distribution, 1427-1433, 2572. sections 1704-1723, orders, decrees, process, etc., 1455-1469, 2578- 2580. section 1724, orders, decrees, process, etc., 2580. sections 1726-1744, public administrator, 1498-1504, 2585-2586. sections 1747-1760a, guardianship of minors, 99-122. section 1761, guardianship of minors, 2227. sections 1763-1767, guardianship of insane and other incompetents, 231-242, 2227, 2264, 2265. sections 1768-1776, powers and duties of guardians, 123-133, 2228, 2229, 2265. sections 1777-1792, sales of estates under guardianship, 134-150, 2230. sections 1793-1799, nonresident guardians and wards, 151-155. sections 1800-1810, guardian and ward; miscellaneous provisions, 156-162. section 1810a, conveyance by guardian, 2233. section 1810b, attorneys' fees, 2233. sections 1822-1822b, estates of missing persons,- 1741, 1743. section 1880, persons who can not testify, 1808. section 1963, presumption as to survivorship, 1807. SECTIONS. OF THE POLITICAL CODE OF CALIFOENIA, AR- EANGED ACCOEDING TO SUBJECT-MATTEE arrest and commitment of inebriates (§ 2185c), 2276. contracts by persons without understanding (§§38-40), 284, 285. escheat (§§41, 474), 59, 60. insane persons, commitment and discharge of (§§ 2168-2174), 269- 281. insane persons, commitment and discharge of (§ 2189), 281-284. 3092 GENERAL INDEX. [References are to pages.] SECTIONS OF THE POLITICAL CODE OF CALIFOENIA, AB- EANGED NUMERICALLY, sections 38-40, contracts by persons without understanding, 284, 285. sections 41-474, escheat, 59, 60. sections 2168-2174, commitment and discharge of insane persons, 269-281. section 2185c, commitment of inebriates and drug habitues, 2276. section 2189, commitment and discharge of insane persons, 281-284. SECURITY (See Sureties) application for further, to be determined at any time, 433. neglect to give new, forfeits letters, 432. nonliability of new sureties, 431. SELECTION of homestead, what is not, 600. SEPARATE PROPERTY (See Community pboperty; References to "L. E. A." notes; Eefr erences to notes in "Kerr's Cal. Cye. Civ. Code"; Sections of the Civil Code of California, arranged according to subject-mat- ter) change of character of, 2803. commingling of funds, 2801. definition of, 1739, 2789. distribution of, 1740. earnings of wife, when living separate, are, 1731. effect of husband joining in mortgage, 2800. estoppel, ■ 2804. filing inventory is notice of wife's title, 1731. homestead selected from, of persons selecting or joining in selection of same, 601. hotaestead selected from, without owner's consent, 602. improvements, 2801. married woman's rights, 2797. of the husband, 1730. of the wife, 1729, 2797. taking title in joint names, 2802, trust in, by husband, 2804. what law governs, 279G. GENERAL INDEX. 3093 [References are to pages.] SERVICE (See References to "L. R. A." notes) of copy of complaint on habitual drunkard, 264. of notice of appeal, 1786. of notice of order to show cause why decedent's property should not be sold, 914. of order to appear in proceedings to mortgage or lease decedent's real estate, 980. of order to show cause in proceedings to obtain order to lease de- cedent's real estate, 988. on guardian, 178. on guardian of infant, insane, or incompetent person, 258, SERVICE BY MAIL (See Sections of the Code of Civil Procedure of California, ar- ranged according to subject-matter) how made, 1806. SERVICE OF NOTICE (See Forms; Heirship) SERVICE OF PROCESS (See References to notes in "Kerr's Cal. Cye. Code Civ. Proc. ") on guardian, 1468. SERVICES TO DECEASED (See Claims against estate; Executor or administrator; Refer- ences to notes in "Am. & Eng. Ann. Cas. ") claims for, against estates, suits on, 736. SET-OFF (See References to "L. R. A. " notes; References to notes in "Am. & Eng. Ann. Cas.") and counterclaim in suit on claim against estate, 746. in action by executor or administrator, 1064. right of, on application for final distribution, 1378. SETTLEMENT of guardians, 129. SETTLEMENT OF ACCOUNTS (See Accounting and settlement) appealable orders, 1781. SETTLEMENT OF ESTATE (See References to notes in "Am. & Eng. Ann. Cas.") ;3094 GENERAL BMBBX. [References are to pagres.3 SHARES OF STOCK appurtenant to land and devisable as real property, 1592, SHERIFF , , redelivery to, of recovered insane patient, 283. SICK BENEFITS action by executor or administrator to recover, 1058. SIGNATURE OF TESTATOR (See References to notes in "Am. & Eng. Ann. Cas. ") SIGNING OF MINUTES (See Peobate peactice and peocedueb) SITUS OF PROPERTY (See References to notes in "Am. & Eng. Ann. Cas.") SPECIAL ADMINISTRATOR (See Complaint; Sections of the Code of Civil Procedure of Cali- fornia, arranged according to subject-matter) accounting by, 464. actions against, 466, 2323. actions by, 466, 2323. allowance of attorneys' fees for, 1154. appeal, affirming disallowance of claim paid, 467. appeal, considerations for appellate court, 467. appeal, lies when, 466. appeal, presumption on, 466. appeal, stay of proceedings, 467. appointment, in general, 461, 2322. appointment, is unauthorized when, 462. appointment, power to appoint, 461. appointment, presumption in favor of, 462. appointment, right to object to, 468. compensation of, 465, 1142, 2323. duties of, 458, 2321. entitled to what compensation, 460. form of bond of, 458. form of clerk's certificate that special letters have been recorded, 456. form of order appointing, 455. form of petition, and appointment of, 454. form of special letters of administration, 456. may be appointed when, 453. nature of duties, 460, 2321. GENERAL INDEX. 3095j [References are to pages.] SPECIAL ADMINISTEATOE— ('Conti)i«ed; power to appoint, 461, 2322. ! powers, duties, and liabilities of, 453-467. powers of, 463, 2322. powers of, cease when, 459. preference given to persons entitled to letters, 457. reimbursement of, 465, 2323. special letters may issue at any time, 455, to give bond and to take oath, 457. to render accounts, 460. SPECIAL COMMISSIONER form of appointment of, to take depositions, 1809. SPECIAL LIMITATIONS by statute on right of testamentary disposition, 1536. SPECIFIC DEVISE AND LEGACY (See Eeferences to "L. E. A." notes; References to notes in "Kerr's Cal. Cyc. Civ. Code") to contribute to payment of debts, 911. SPECIFIC PERFORMANCE (See References to "L. R. A." notes) decree of, to convey or transfer property of decedent, in case of death, may direct possession to be surrendered, 967. effect of recording copy of decree, 966. of contract to adopt child, 21. of contract to convey or transfer property in case of death, right to enforce, 964-967. of contract to make a will, 974. of contract to make a will, misjoinder, 976. of contract to make a will, parties, 976. of contract to make a will, when enforceable, 974. of contract to make a will, when not enforceable, 975. of decedent's contract, in general, what contracts can not be en- forced, 974. of decedent's contract, in general, what contracts may be enforced, 973. of decedent's contract to c6nvey, appeal, 972. of decedent's contract to convey, can not be enforced when, 971. of decedent's contract to convey, jurisdiction of courts, 969. of decedent's contract to convey, law of the case, 972. ^ of decedent's contract to convey, may be enforced when, 970. of decedent's contract to convey, nunc pro tune orders, costs, 972. of decedent's contract to convey, petition for, requisites of, 970. 3096 GENERAL INDEX. [References are to pages.] SPECIFIC FEnFOHMANGE— (Continued) of decedent 's contract to convey, scope and validity of statute, 968. of executory contracts of deceased, 968-976. power of court to enforce decree, 960. SPECIFIC PEOPEETT claimant of, need present claim against estate wlien, 714. recovery of, without presentation of claim as a creditor, 784. SPELLING IN WILLS (See Eeferences to "L. E. A." notes) SPENDTHEIFT AND DEUNKAED , ^ allowance to ward for expense of defending guardianship proceed- ings against spendthrift or insane person, 262. appointment of guardian for habitual drunkard, 264. complaint against drunkard for squandering his property, 263. copy of complaint against spendthrift to be filed, 262. court may appoint guardian for spendthrift, 261. form of complaint against habitual drunkard, 265. form of petition to vacate judgment of drunkenness, 266. information against habitual drunkard, 264. judgment of drunkenness, 263. marriage of spendthrift, termination of guardianship byj 267. meaning of term "spendthrift," 263. notice to spendthrift of guardianship proceedings, 262. powers and duties of guardian for spendthrift, 263. powers of guardian for habitual drunkard, 265. presumption as to necessity for continuation of guardianship of spendthrift, 267. relative may make complaint against habitual drunkard, 264. service of copy of complaint against habitual drunkard, 264. spendthrift is not incapable of making a will, 267. vacation of judgment of drunkenness, 266. STATE right of, to collateral-inheritance taxes, 1767. STATE CONSTITUTION (See Eeferences to "L. B. A." notes) STATE CONTEOLLEE (See COLLATEEAL-INHEKITANCE TAX) GENERAL INDEX. 3097 [References are to pages.] STATE HOSPITAL certificate of discharge to be filed, 284. conditions on recommitment of patient, 283. copy of certificate of discharge as evidence, 284. discharge of patient from, 282. .discharge of patient on order of commission, 283. parole of patient from, 283. "patient" of insane asylum defined, 284. record of certificate of discharge, 284. redelivery of recovered patient to sheriff, 283. return of patient to county, 283. superintendent may refuse discharge from, 282. superior judge may order discharge from, 282. STATE TREASURY deposit of money in, upon settlement of estate when claims are unpaid and claimant can not be found, 692. payment of moneys and effects of intestates into, 1509. STATEMENT form of, of financial ability, 278. STATEMENT ON APPEAL (See Appeal) STATUTE (See References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Gas."; References to notes in Henning's General Laws; Testimony of parties, etc.) as to collection, by surviving heirs, of money deposited in bank, 2332. as to examination and commitment of insane persons, constitution- aUty of, 286. concerning administration on estate of missing persons, invalidity of, 1743. concerning discharge of insane from asylums, purpose of, 289. STATUTE OF FRAUDS does not apply to probate sales, 890. does not run against allowed claims when, 890. STATUTE OF LIMITATIONS (See Limitation of actions; References to "Am. Deo." notes) effect of presentation of claims as to, 616. prevents recovery of homestead when, 600. right of possession to estate is barred, how, -533. runs against executor's or administrator's right of possession, 533. 3098 GENERAL INDEX. [Reterences are to pages.] STATUTE OF NONCLAIM (See Eeferences to uotes in "Am. iSs Eng. Aun. Cas.") STAT OF PROCEEDINGS effect of, appeal as, 228. in special administration of the estate, 467. on appeal from decree of distribution, 1381. STIPTOiATION in action against exeeutoT or administrator, 1072. STOCKHOLDER OF CORPORATION competency of, as witness to transaction with deceased person, 1849. STOCKS, BONDS, OR NOTES (See References to "L. E. A." notes) STREET ASSESSMENTS action against executor or administrator to recover, 1085. SUBJECT-MATTER (See Sections of the Civil Code of California, arranged according to subject-matter; Sections of the Code of Civil Procedure, arranged according to subject-matter; Sections of the Political Code, ar- ranged according to subject-matter) SUBPOENA form of, 1810. SUBROGATION right of sureties on administration bonds to, 443. SUBSCRIBING WITNESSES (See Eeferences to "Am. St. Rep." notes; Eeferences to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Gas."; Eefer- ences to notes in "Kerr's Cal. Cyc. Civ. Code"; Eeferences to notes in "Kerr's Cal. Cye. Code Civ. Proe. "; Wills, execu- tion of) SUBSTITUTION in action by executor or administrator, 1048. of;:land for legacies, election, 1591. of purchasers at probate sales, 924. where defendant dies pending action against him, 764. GENERAL INDEX. 3099 [References are to pages.] SUCCESSION (See Descent; References to "Am. St. Rep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cyc. Civ. Code"; Sections of the Civil Code of California, arranged according to subject-matter) acknowledgment of illegitimate child, 2211. advancement is part of distributive share, 31. advancement made during lifetime of testator, effect of, 1532. apportionment, when no need of, 39. advancements, when too much, or not enough, 31. after-born child, unprovided for, to succeed, 1530. aliens inheriting must claim within five years, 36. by children and others to community property, 1734. children, or issue of children, unprovided for, to succeed, 1530. children's right of inheritance, 46, 47, 2204. construction of statutes as to widow's rights, 46, 2204. construction of Utah statute as to right of illegitimate child to inherit, 57. convicted murderer of decedent not to succeed, 37, 2205. definition of, 23. deflection of descent, 40, 2201. degree of kindred, ascending and descending direct line, 29, degree of kindred, collateral line, 28, 30. degre'e of kindred, how computed, 28. degree of kindred, in direct line, 29. descent on death of unmarried minor, 48. descent to father, 50. descent to grandparents, 50. distribution of common property on death of husband, 34. distribution of common property on death of wife, 34. effect of not claiming, 36. estate passes to whom, 23. evidence of recognition of illegitimate child, 55. explanation of, or "descent," 38. heirs of half blood, 47. illegitimacy of child, how inferred, 57. illegitimate child, acknowledgment of, 2211. inheritance by adopted children, 48. inheritance by aliens, 35, 52, 2206. inheritance by convict, 51, 2205. inheritance by husband or wife from each other, 33. inheritance by Indians, 53, 2206. inheritance by or through illegitimate children, 54-58, 2211. inheritance by representation, 35. law of, 22-58, 2212. Probate Sup. 68. 3100 GENERAIi INDEX. [References are to pages.] SVCCESSION— (Continued) on death of legatee, before testator, lineal descendants take estate, 1532. presumption as to legitimacy of child, 56. procedure and evidence as to heirship, 2212. question of advancement becomes immaterial when, 39. relatives of the half blood, 30. right of illegitimate children to inherit, acknowledgment, 54. right oi illegitimate children to inherit in certain events, 27. right of nonresident alien to inherit, 57. right of pretermitted illegitimate child to inherit, 58. right of widow, as a survivor, 45, 2202. right of widow, in general, 44-46. right of widow, under agreements, 45. share of after-born child to be taken from what estate, apportion- ment, 1531. successor is liable for decedent's obligations, 37. sufficiency of acknowledgment of illegitimate child, 55, 2211. " taking by contract, and not by, 54. taking by descent, in general, 38, 39, 2199. term is used in place of what, 38. the word "succeed" refers to what, 38. title passes how, 40, 2200. to, and distribution of, property, 23-26. to estate of illegitimate not acknowledged or adopted, 55. to community property, 42. to homesteads, 43. to mining property, 42. to property of illegitimate child, 27. to timber-culture claims, 44. value of advancements, how determined, 32. what are advancements, 32. what law governs, 58, 2212. what property descends, 40-44. when heir advanced to dies before decedent, 33. who can not inherit, 51. widow's right of election to take under will, 46, 2202. SUCCESSION TAX (See Eefeiences to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Cas.") srccESsrvE administeations liabilities of representatives under, 446. SUCCESSIVE ADMINISTEATOES compensation of, 1141. GENERAL INDEX. 3101 [References are to pages.], SUCCESSOR right and title of, to antemortem homestead, 608. SUICIDE effect of, on issue of insanity, 1672. SUIT TO QUIET TITLE against an executor or administrator, 1083. by an executor or administrator, 1059. SUITS (See Actions) on claims against estates, 732. SUMMAEY ADMINISTEATION form of notice of, to creditors, 559. form of order that, be had, 559. SUMMARY PROCEEDINGS (See References to "Am. St. Rep." notes) SUMMARY SALE OF MINES (See Sale op mines) SUMMONS form of, where executor is plaintiff, 1812. form of, where trustee is plaintiff, 1811. SUPERIOR COURT not to lose jurisdiction of estate by final distribution when, 1427. of California, conflicting jurisdiction, 305. of California, jurisdiction of, 301-304. of Washington, jurisdiction of, 301. SUPERIOR JUDGE may present claim against estate and sue thereon, 678. powers of, at chambers, 1807. SUPPLEMENTAL COMPLAINT where defendant dies pending action against him, 764. SUPPORT of insane or incompetent person, 249. of insane person, 287. 3102 GENERAL INDEX. [References are to pages.] BTJPPOET OF FAMILY (See Family allowance; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) administration when estate does not exceed fifteen hundred dollars, 558. all property exempt from execution to be set apart for, 548, 2346. estate not exceeding fifteen hundred dollars, 2347. extra allowance may be made for, 556. form of affidavit of posting notice of hearing of petition for fam- ily allowance, 554. form of affidavit of posting of notice of petition for assignment of estate for use and support of family, 561. form of notice of application for order to set aside all of dece- dent's estate for the benefit of Hs family, 560. form of notice of hearing petition for family allowance, 555. form of notice of time and place of hearing application for setting aside entire estate for use and support of family, 561. form of order assigning entire estate for use and support of fam- ily of deceased, 562. form of order for family allowance, 555. form of order making provision for, until return of inventory, 547. form of order setting apart property exempt, '553. form of order to show cause why entire estate should not be as- signed to vfidow and minor children, 560. form of petition for decree setting apart homestead for use of family, 549. form of petition for order setting apart personal property for use of family and for family allowance, 553. payment of allowance for, 556. ■property set apart for, how apportioned between widow and chil- dren, 557. right of family to remain ia possession of homestead, etc., 546. when all property other than homestead to go to children, 563. SUEETIES (See Eeferences to "Am. Deo." notes; References to "Am. St. Rep." notes; Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas. "; Eeferences to notes in "Kerr's Cal. Cyc. Code Civ. Proc"; Security) form of -administrator 's bond with corporation as surety, 414. form of administrator's bond with numerous, 412. form of citation to administrator to give further security where, seeks to be released, 431. form of examination of, on administration bond, 419. form of justification of, on additional bond of administrator, 418. form of justification of, on administration bond, 418. GENEEA.L INDEX. ;'3103 tReferteuces are to pases.] SVR^TIES— (Continued) form Of order and citation to administrator or executor when, are insufficient, 424. form of order for, citation, on petition of, to be released, 430. form of order ,qf reference to court commissioner to examine and report on ; qualifications of, 1813. form of order that, be released, 432. form of petition for further security in case of failing, 423. form of petition of, on administration bond to be released, 430. liability of, on administration bond attaches when, 439, 2317. on administration ^)ond, action against, not permitted until indebt- edness is determined, 437, 2319. on administration bond, action against, of defaulting administrator and of deceased administrators and co-executors, 446, 2319. on administration bond, are answerable for what, 438, 2318. on administra,tion bond, are liable for what, 438, 440. on administration bond, are not liable for what, 442. on administration bond, conclusiveness of accounting upon, 439. on administration bond, conclusiveness of judgment upon, 439. on administration bond, joint liability of, 443. on administra,tion bond, justification of, 417. on administration bond, liability of, for personal debts of executor or administrator, 441, 2318. on administration bond, may be examined as to value of property, 421. on administration bond, release or discharge of, 443. on administration bond, restriction upon action against, 447, 2319. on administration bond, termination of liability of, 443. on administration bond, what does not release, 444. on guardian's bond, additional and substituted, liability of, 225. on guardian's bond, can not escape liability how, 224. on guardian's bond, corporation may become, 221, 2258. on guardian's bond, general rules of liability, 225, 2258. on guardian's bond, liability of, 224, 2258. on guardian's bond, nature of liability, 224, 2258. on guardian's bond, no action against, until settlement of account, 223, 224. procedure for release of, 429. release of, 429. verified petition showing failing sureties, 423. SURETY COMPANY (See Eeferences to "L. E. A." notes) power of, to act as guardian without bond, 168. SURROGATE'S COURT (See References to "L. B. A." notes) 3104 GENERAL INDEX. [References are to pages.] SURVIVING PARTNER (See Estate where paetnership existed; References to "h. E. A." notes) competency of opposing party, in action by or against, as a witness concerning transactions with a deceased partner, 1856. form of alternative order that surviving partner render account to administrator, or show cause, 1010. form of order for attachment to compel, to render an account, 1011. form of petition that surviving partner render an account, 1009. not entitled to administer on estate of partnership, 348. testimony of, when inadmissible as relating to transaction with a deceased person, 1856. to settle up business, appraisement, accounting, 1008. SURVIVOR right and title of, to aiitemortem homestead, 608. right of, to homestead, 589. SURVIVORSHIP (See References to notes in "Kerr's Cal. Cyc. Civ. Code"; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) law of title by, to homestead applies to what, 598. presumption as to, 1807. proof of, 598. SUSPENDING POWER OP ALIENATION (See Promiscuous provisions of codes; Sections of the Civil Code of California, arranged according to subject-matter) SUSPENSION form of order restoring powers of suspeiided executor or adminis- trator, 484. form of order suspending executor Or administrator, 483. form of order suspending powers of executor or administrator until question of waste can be determined, 483. of executor or administrator, 493. TABLE form of, of collateral-inheritance tax, exemption, and percentages, 1760, 1761. TAXES (See Collateral-inheritance tax) guardian is not liable for, assessed to ward, 216. liability of executor or administrator for,. 1125. GENERAL INDEX. 3105 ineterences are to pages.] TAX'ES— (Continued) must be paid before distribution is had, 1317. no distribution without payment of, 1348. should be assessed to guardian, not to ward, 216. TAXATION (See Eeferences to notes in "Am. & Eng. Ann. Cas.") TAXATION OF COLLATERAL INHERITANCES (See References to ' ' Am. St. Rep. ' ' notes) TENANT IN COMMON devisee or legatee takes as tenant in common when, 1565. TEN PER CENT ADVANCE form of administrator's deed to one offering, 865. form of offer of, on sale of real estate, 855. offer of, above bid, court may accept and confirm sale, 848. TENURE by which homestead is held, 1803. TERMINATION OF GUARDIANSHIP of insane or incompetent person, 256. TERMINATION OF LIABILITY of sureties on administration bonds, 443. TESTAMENTARY CAPACITY (See References to "Am. Dec." notes; References to "Am. Rep." notes; References to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cye. Civ. Code"; Wills, execution of) TESTAMENTARY DECLARATIONS (See References to "L. R. A." notes) TESTAMENTARY DISPOSITION (See References to "L. R. A." notes; RefpreTincs to notes in "Am. & Eng. Ann. Cas."; References to notes in "Kerr's Cal. Cyc. Civ. Code") right of, 1535-1538, 2590. right of, limitation of, 2591. right to probate homestead is paramount to, 621. to "heirs," "issue," "descendants," etc., effect of, 1560. ^IPS GENERAL INDEX. fReferences are to pages.] TESTAMENTARY GIFT (See Eeferences to notes in "Am. &,Eng. Ann. Cas.") TESTAMENTARY GUARDIAN (See Eeferences to "L. R. A." notes) authority of, 1446. guardian appointed by deed is, 88, 2220. mother's consent to father's appointment, 90. mother's incapacity to appoint, 89, 2220. powers of, 90. validity of acts of, 90. TESTAMENTARY INSTRUMENT (See Eeferences to notes in "Kerr's Cal. Cyo. Civ. Code") TESTAMENTARY RIGHTS (See Eeferences to "Am. St. Eep." notes) TESTAMENTAEY TEUST (See Eeferences to "L. E. A." notes) TESTAMENTAEY TEUSTEES (See Trust under -will) TESTAMENTAEY WEITING (See Eeferences to "Am. Dec." notes) TESTATOR'S OBLIGATIONS liability of beneficiaries under wiU for, 1588. TESTIMONY of witnesses on probate of will, reduced to writing, as evidence in subsequent contest, 1657. TESTIMONY AS TO TRANSACTIONS WITH DECEASED PER- SONS. (See References to "L. E. A." notes; Testimony or PAETrES, etc.) TESTIMONY OF APPLICANT (See Wills, probate op) GENERAL INDEX. 3107 [References are to pages.] TESTIMONY OF PARTIES, OR PERSONS INTERESTED, FOR OR AGAINST REPRESENTATIVES, SURVIVORS, OR SUCCES- SORS IN TITLE OR INTEREST OF PERSONS DECEASED OR INCOMPETENT application of statute, equal balance of disadvantages, 1838. application of statute, equal footing, 1838. application of statute, in California, 1836. application of statute, in general, 1835. application of statute, meaning of terms, 1839. application of statutes of other states, 1837. particular matters to which statute does not apply, 1840, 2860. particular matters to which statute does not apply, action to quiet title, 1842. particular matters to which statute does not apply, claim in favor of estate, 1841. particular matters to which statute does not apply, controversy as to relative rights of heirs or devisees, 1842, 2860. particular matters to which statute does not apply, to establish a resulting trust, 2860. who are competent, agents, 1848. who are competent, clerks, 1848. who are competent, employees, 1848. who are competent, in general, 1843, 2861. who are competent, in particular instances, 1850, 2862. who are competent, ofBcers of corporation, 1849. who are competent, parties not interested, 1844. who are competent, party may testify to what, 1845, 1846, 2861. who are competent, stockholders of corporation, 1849. who are competent, widow of deceased, 1850, 2862. who are incompetent, action against surviving partner, 1856. who are incompetent, action by surviving partner, 1856. who are incompetent, action on note indorsed to partnership, 1857. vrho are incompetent, contest of will, 1860, 2863. who are incompetent, establishment or enforcement of trusts, 1859, 2863. who are incompetent, in case of fraud, 1858, 2863. who are incompetent, in general, 1852, 2862. who are incompetent, in other particular instances, 1861, 2863. who are incompetent, parties can not testify to what, 1852-1854, -2862. who are incompetent, partnership affairs, in general, 1855, 2862. who are incompetent, physician's services to deceased, 1857. who are incompetent, promissory notes, 1858. who are incompetent, where gift is subject-matter of litigation, 1858. 3108 GENERAL INDEX. [References are to pages.] TESTIMONY 0¥ SUBSCRIBING WITNESSES (See Wills, probate of) TIMBER-CULTITEE CLAIM succession to, 44. want of jurisdiction over, 311, TITLE carried by administrator's deed, 947. conveyed by probate sale, 927. of executor or administrator to property, 1026. of purchaser under foreclosure of mortgage of decedent's property, 1000. probate court has no jurisdiction to try, 314. TOBT (See References to "Am. St. Rep." notes; References to "L. E. A." notes) action against executor or administrator for, 1083-1085. TRANSACTIONS WITH DECEDENTS evidence as to, 1835-1861. TRANSFER (See Conveyance or transpee) TRANSFER OF PROCEEDINGS application for, is insufficient when, 480. authority of court to which probate matters are transferred, 476. from one county to another, proceedings for, 118. form of order for, to adjoining county, 476. form of order retransferring proceedings, 479. form of petition for order retransferring proceedings, 478. in general, 475-480. not to change right to administer, 477. probate matters may be transferred to adjoining county, 475. retransfer of proceedings, how made, 477. when ease shall not be transferred, 476. when proceedings must be returned to original court, 479. TREASURY form of county treasurer's receipt to agent for nonresident dis- tributee, 1414. form of petition claiming money paid into, by agent of nonresident distributee, 1420. GENERAL INDEX. BlUa [References are to pages.] TEESPASS action by executor or administrator for, on land, 1066. executor or administrator may maintain action for, 1007. of decedent, representative may be sued for, 1008. TEIAL by jury, of issues in contest of will after probate, 1707. by jury, of issues on accounting and settlement, 1229. by referee, of doubtful claim referred to him, 688. in proceedings to determine heirship, 1325. jury trial of issues of fact joined, 1490. of issues of fact in probate courts, 1489. TEIAL DE NOVO on appeal to circuit or district court, 1794, TEIAL OF ISSUES court to try a case when, 1465. facts joined in probate proceedings, how tried, 1464, 1465. TEirST (See Eeferences to notes in "Am. & Eng. Ann. Gas."; Sections of the Civil Code of California, arranged according to subject-mat- ter; Trust under will) action against executor or administrator to enforce, 1079-1081. action by executor or administrator to enforce, 1056. actions by heirs to enforce, 1332. competency of plaintifE as a witness, to enforce a trust against the decedent's estate, 1859. devise in, with power to sell, 939. directions coupled with, in will, effect of, 940. enforcement of, as claim against estate, 782-785. probate court has no power to enforce, 315. title to property subject to, rests where, 1608. TEUST DEVISE revocation of, 1552. TEUSTEE (See Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas. "; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) appointment of, by court, for estate of missing person, bond to be given by, 1742. executor or administrator becomes when, 1026. influence of, not to be used for his advantage, 1805. 3110 GENERAL INDEX. [References are to pages.] TRUSTEE— fContinued; investment of money by, 1805. named in will as executor, compensation of, 1141. of estate of missing person, powers and duties of, 1742. purchase by, of claims against trust funds, 1805. TRUST FUND is not an asset of decedent's estate, 521. liability of representative for mingling, 1122. TRUST UNDER WILL (See Trust) acceptance of resignation of trustee or executor, 1429. accounting, calling trustee to account, 1451. accounting, compensation of trustee, 1451. accounting, distinction betvreen accounts, 1450. accounting, duty and liability to account, 1450. accounting, involves what determination, 1450. accounting, power of court, 1450. appeal from decree settling account of trustee, 1429. appointment of trustee or executor by court, 1430. compensation of trustees, 1429. construction of, 1436. creation of, 1435, 2573. devises in trust, 1449, 2458. discharge of executor acting as trustee, 1445. discretionary trusts, 1448. executor and testamentary trustee, 1441-1447. executor and testamentary trustee, object of law, 1441. executors who are trustees under will, distinct and separate capaci- ties, 1442. in general, 1434, 2573. is void when, 1438. judgment construing, 1437, 2573. jurisdiction in equity, 1447, 2575. jurisdiction of courts, 1432. jurisdiction, sale by trustee, 1448. law of situs governs, 1437. probate jurisdiction, exclusiveness of, 1440. probate jurisdiction, over trustees, to prevent mismanagement, 1441. probate jurisdiction, retention of, for purposes of settling accounts, 1439. probate jurisdiction, to determine what questions, 1440. probate jurisdiction, to determine whether valid trust has been cre- ated, 1439, 2574. purposes of trust communicated orally, 1449. GENERAL INDEX. 3111 [References are to pages.] TEUST UNDER 'WILL— (Continued) resignation of trustee must be in writing, 1429. resignation of trustee who has qualified as executor, 1429. settlement of account of trustee, how made, 1428. superior court not to lose jurisdiction of estate by final distribu- tion when, 1427, 2572. testamentary guardians, authority of, 1446. testamentary trustee, in general, 1442. testamentary trustee, discharge of executor acting as, 1445. testamentary trustee, duties of, can not be assumed until when, 1444. testamentary trustee, duty of before distribution, 1445. testamentary trustee, duty, power, and liability of, 1444. trustee, appeal from decree settling account of, 1429. trustee, calling to account, 1451. trustee, compensation of, 1429, 1451. trustee, distribution to, effect and validity of decree, 1453. trustee, distribution to, power of court, 1452. trustee, distribution to, trust devolves on whom, in case of death, 1453. trustee, duty and liability of, to account, 1450. trustee, form of order accepting resignation of testamentary, 1432. trustee, form of order appointing, 1431. trustee, form of petition for appointment of, 1430. trustee under will may decline, 1429. trust with power to sell under will, 1446. validity of, 1437, 2573. TWENTY DOLLARS vouchers for items less than, 1173, 2513. trNDEETAKING ON APPEAL (See Appeal) UNDUE INFLUENCE (See References to "Am. St. Eep." notes; References to "L. R. A." notes; References to notes in "Am. & Eng. Ann. Gas."; WUls, contest of probate of) UNIFORMITY OF TAXATION (See Collateral-inheritance tax) UNITED STATES claim in favor of, must be presented before suit, 709. 3112 GENERAL INDEX. [References are to pages.] UNITED STATES BONDS form of order directing investment of moneys of estate in, 1023 form of petition for leave to invest moneys of estate in, 1021. UNITED STATES LAND LAWS homestead under, can not be sold for benefit of creditors, 894. UNPATENTED MINING CLAIMS (See Eeferenees to "L. E. A." notes) UNLAWFUL DETAINER action against executor or , administrator in, 1085. action by executor or administrator in, 1066. UNSOUND MIND (See References to notes in ''Kerr's Cal. Cyc. Civ. Code") contract by person of, 285. UTAH rights of doweress in, 661. VACATING decree of distribution for fraud, 1374. decree of distribution, in equity, 1374. orders and decrees of probate courts, 1482, 2581. premature decree of distribution, 1375. VACATING SALES (See Sales) action against executor or administrator to vacate sale, 1085. limitation of actions for, 943. right to vacate guardian's sale, 189. VALIDITY of acts of executor, etc., until his power is revoked, 472. VALUE of ante-mortem homestead, how limited, 606. of homestead, limit as to, 613. of probate homestead, not limited, 639. VARIANCE between pleadings and proofs in suits on claims against estates, 742. VENDOR'S LIEN need not be presented as claim against estate when, 713. GENERAL INDEX. 3113 [References are to pages.] VERDICT (See Wills, contest of pkobate op) VERIFICATION form of, of account of agent for nonresident distributee, 1417. form of, of complaint, 1834. form of, of guardian's annual account, 131, form of, of guardian's petition for order of sale, 139. form of, of petition or order of sale of real estate where per- sonal property is insufficient, 838. form of, of return and account of sale of real estate, 851, of answer, when not defective, 1835. of claim against estate, 702. of claim against estate, effect of defective, 723. of petition for sale of real estate, 904. of pleading, to be made on information "or" belief, 1835, upon information "and" belief, is sufficient, 1835. VESTING AND DEVESTING OF ESTATES (See Wills, pkopertt passing by, and vesting of interests) VESTING OF TITLE to probate homestead, 642, VOIDABLE SALES (See Sale in GEisTEBAL) VOID SALE (See Sale in general) action against executor or administrator to recover deposit on, 1079. VOUCHEES for items less than $20.00, 1173, 2513. must be produced and filed by representative, 1172. of representative must remain in court, 1172. requirements as to, 1201. WAIVER by executor or administrator, of compensation provided for by will, 1136. executor or administrator can not waive statute of limitations, 753. of right to probate homestead, 641. of settlement of final account, 1351. what is no waiver of attorney's fee, 1149, 3114 GENERAL INDEX. [Heferenoes are to pages.] WAIVER OF EIGHT to letters of administration, by creditor, 384. to letters of administration, how lost, 383, 384. to letters of administration, in general, 383. to letters of administration, statute of limitations, 384. "WANT OF INTEGRITY what, does not disqualify applicant for letters of administration, 391. WANT OF UNDERSTANDING what, does not disqualify applicant for letters of administration, 390. WARD (See GrrARDiAN and waed; Gtjardtanship or insane peesons and OTHER INCOMPETENTS; References to "L. B. A." notes; Spend- thrift and drunkard) WARRANT (See Collateral-inheritance tax) for assignment of dower, 653. WARRANT OF ARREST of alleged insane person, 270. of alleged insane person, certificate of service of, 271. WARRANT OP COMMITMENT form of, for failure to produce will, 1620. WASHINGTON (See Superior court) WASTE action against executor or administrator for, 1085. executor or administrator may maintain action for, 1007. form of order revoking letters of administration for, 485. form of order suspending powers of executor or administrator until question of, can be determined, 483. notice to public administrator, by civil officers, of, 1499. of decedent, representative may be sued for, 1008. WIDOW (See Complaint; References to "Am. Deo." notes; References to "L. E. A." notes; References to notes in "Am. & Eng. Ann. Gas.") GENERAL INDEX. 3115 [References are to pages.] "WmOVr— (Continued) and children, property set apart for support of family, how appor- tioned between, 557. competency of, as a witness as to transactions with her deceased husband, 1850. construction of statutes as to, respecting right of inheritance, 46, 2204. election to take under will, 46, 2202, 2685, 2688. interest of, in community property, 1734. is entitled to family allowance when, 572. is not entitled to family allowance when, 573. right of, as a survivor, 45. right of, in general, to probate homestead, 627. right of, to inherit, notwithstanding agreement, 45. right of, to probate homestead, how not affected, 628. right of, to probate homestead, limitations on, 629, right of, to succeed, 44-46. succession of, to community property, 1734. takes as trustee when, 527. WIFB distribution of common property on death of, 34. effect of death of, as to community property, 1733. right of husband and wife to inherit from each other, 33. right of, to support, as limiting testator's control, 1537. "WIFE'S ESTATE (See COMMUNITT propertt) in community property, nature of, 1732. WILL (See References to "L. E. A." notes; References to notes in "Prob. Eep. Ann."; Sections of the Civil Code of California, arranged according to subject-matter; Trust under will; Wills, in gen- eral) annulling, after distribution, 1367. appointment of guardian by, 77, 89, 90. can not be used as evidence to impeach decree of distribution, 1355. consideration of, on application for final distribution, 1355. devises and bequests, 1589, 2669. effect of, upon gift, 1806. election of widow to take under, 46, 2685. election of widow under mistake, 1605, 2688. form of order admitting, to probate, and for letters of adminis- tration with the will annexed, 326. found after letters of administration granted, 468. Probate Sup. 59. 3116 GENERAL INDEX. [Eeferences are to pages.] WILL — (Continued) includes dodicil, 1805. must be proved in what county, 293. provision of, for payment of debts, to be followed, 868. not to be admitted to probate before disqualified judge, 475. , sales under power in, 934-942. ' sales without order under provisions of, 869. specific performance of contract to make, 975, 976, spendthrift may make, 267. WILLS, CLASSES OF definition of a holographic will, 1518. foreign wills, -1549, 2622. holographic wiUs, by married women, 1548. holographic wills, formalities in executing, 1547, 2617. holographic wills, in general, 1546, 2617. holographic wiUs, what are, 1518. instruments construed not to be wills, 1550, 2623. mutual or reciprocal wills, 1549, 2620. mutual wills, validity of, 1519, 2620. nonintervention wills, 1550, 2622. nuncupative wills, 1548, 2619. nuncupative wills, requisites of, 1522. wills in form of deeds, 1544-1546. WILLS, CONSTRUCTION AND INTEEPEETATION OF (See Legacies) ademptions of general legacies, advancements are not to be taken as when, 1566. ademption of general legacies, gifts are not to be taken as when, 1566. adopted children, rights of, 1579. advancements are not to be taken as ademptions of general lega- cies when, 1566. after-born child, rights of, 1579, 2666. after-born child takes under will when, 1562, 2666. alienation, suspending power of, 2666. "bequest," meaning of, 1590. ' ' bequest of my books, ' ' means what, 1567. bequest of residue, effect of, 1560. charitable bequests, favored by courts, 1576, 2664. charitable bequests, in general, 1575, 2662. "children," is a word of purchase when, 1571. class, devise to, 1573, 2652. clear devises, when not out down, 1573, 2656. community, property, 1602, 2683. GENERAL INDEX. 3111 [References are to pages.] WILLS, CONSTEUCTION AND INTERPBETATION OV— (Con- tinued) conditional bequest of property, what is, 1564, 2680. condition precedent, effect of, 1564. condition precedent in will, what is, 1564. condition precedent, when deemed performed, 1565. condition subsequent, what is, 1565. conflicting and inconsistent provisions, 1572, 2651. construction of devise to "heirs," 1570. construction of words and provisions, 1566, 2629. conversion takes effect when, 1562. death of devisee or legatee does not affect interests in. remainder, 1564. death of devisee or legatee, effect of, 1563. devise and bequest vest when, 1563. devise is not affected in what case, 1556. "devise," meaning of, 1590. devise of land, how construed, 1533, 2641. devise of residue passes what, 1560. devise or bequest of all real or all personal property, or both, 1559. devise or bequest to a class, effect of, 1561, 1573. devise to a class, 1573, 2652. devise to witness, 1573, 2657. devisee takes as tenant in common when, 1565. effect of technical words, 1558. election by widow or heirs, 1603, 2685. "employees," refers to whom, 1566. "fall to her children," create remainder in fee when, 1570. "family," meaning of, 1570. "firm," meaning of, 1567. gifts are not to be taken as ademptions of general legacies when, 1566. "go to," as words of direct devise, 1570. "heirs," synonymous with children, 1570, 2646. "if," imports a condition when, 1570. indefinite and uncertain devises, 1573, 2651. intention of testator, how ascertained, 1568, 2638. intention of testator, in general, 1568, 2633. intention of testator, parol evidence to explain, 1568, 2638. intention to be ascertained from the will, 1555. intestacy is to be avoided, 1558. invalid parts in wUl, 1574, 2657. Kansas, estates tail in, 2696. language of will, ambiguous and doubtful words, 1571, 2648. language of will, precatory words, 1572, 2648. law in force, 1569, 2641. 3118 GENERAL INDEX. [References are to pages.] WILLS, CONSTRUCTION AND INTEEPEETATION OF— (Con- tinued) "legacy," meaning of, 1590. legatee takes as tenant in common when, 1565. limitation on charitable bequests, 1534, 2662. meaning of certain words, 1569, 2643. mistakes and omissions in will, effect of, 1562. not affected by what provisions, 1587. omissions and mistakes in will, effect of, 1562. on death of legatee, before testator, lineal descendants take estate, 1532. "ornaments," includes articles of jewelry, 1567. "or," will be read conjunctively when, 1567. partial intestacy, 1574, 2661. perpetuities, 1575, 2661. phrase ' ' in the event of, ' ' means what, 1570. posthumous child, rights of, 1579, 2666. posthumous child takes under will when, 1562, 2666. power to devise, how executed by terms of will, 1559. pretermitted children, rights of, 1577, 2665. punctuation, not to be regarded, when, 2633. "relative," does not include whom, 1570. residuary clauses, construction of, 1560. "residue," meaning of, 1570. restriction on alienation, 2666. rule favoring testacy, 1574, 2659. rules of interpretation, 1555. several instruments are to be construed together, 1556. technical words are not necessary, 1558. tenant in common, devisee takes as when, 1565. tenant in common, legatee takes as when, 1565. testamentary disposition can not be devested when, 1563. testamentary disposition to "descendants," effect of, 1560. testamentary disposition to "family," effect of, 1560. testamentary disposition to "heirs," effect of, 1560, 2646. testamentary disposition to "issue," effect of, 1560. testamentary disposition to "legal representatives," effect of, 1560. testamentary disposition to ' ' nearest " or " next of kin, ' ' effect of, 1560. testamentary disposition to nearest "relations," effect of, 1560. testamentary disposition to "personal representatives," effect of, 1560. testamentary disposition to "relatives," effect of, 1560. testamentary disposition to "representatives," effect of, 1560. testator's intention to be carried out, 1555. vague and uncertain provisions, 1572, 2650. GENERAL INDEX. 3119 [References are to pages.] WILLS, CONSTRUCTION AND INTERPRETATION OF— (Con. tinned) various parts of will are to be harmonized, if possible, 1556. what law governs, 1569, 2641. what terms are used as words of donation, and of limitation, 1561. what words are not necessary to pass a fee, 1559. when ambiguous or doubtful, 1557. where seveial parts are absolutely irreconcilable, the latter must prevail, 1556. wills pass estate subsequently acquired, 1533, 2683. words and provisions to be given effect, if possible, 1569, 2642. words are to be taken in ordinary sense, 1557. words are to receive an operative construction, 1557. words in a will refer to what time, 1561. WILLS, CONTEST OF, AFTER PROBATE (See References to notes in "Kerr's Cal. Gye. Code Civ. Proc. "; Wills, contest to probate of) appeal, consideration on, 1712, 2771, appeal, findings, 1712, 2771. appeal, in general, 1711. appeal, right of, 1711. citation to be issued to interested parties, 1697. collateral attack on proceedings, 1710. contest of foreign will, 1711. contest of probate within one year, 1693. custs and expenses, by whom paid, 1702. costs in contest after probate, 1709, 2769. dismissal and nonsuit, 1709, 2770. effect of revocation of probate, 1709, 2769. estoppel to contest, 1706. evidence, burden of proof, 1708, 2769. evidence, presumptions, 1708. foreign will, contest of, 1711. heirs, as witnesses, 1709. incompetency of witnesses, 1860. in general, 1703. insane persons as witnesses, 1709. intervention, 1706. issues, rule governing, 1706. issues, trial of, by jury, 1707, 2768. nonsuit and dismissal, 1709. parties, 1703, 2766. petition to revoke probate of will, how tried, 1699. petition to revoke probate of will, judgment, 1699. pleading, 1706, 2767. 3120 GENERAL INDEX. [References are to pages.] WILLS, CONTEST OF, APTBE PROBATE— rConiiwed; ■ probate, when not conclusive, 1702. revocation of probate, effect of, 1701. second contest, riglit to maintain, 1710, 2770. trial of issues of fact, 1699. order revoking probate of will is appealable, 1783. time, limitation of action, in general, 1704, 2767. time, limitation of action, delay in prosecuting contest, 1705, 2767. time, limitation of action, effect of amending petition, 1705, 2768. witnesses, heirs and insane persons as, 1709, 2769. what motion is a contest, 1704. WILLS, CONTEST OF PROBATE OF (See References to "L. E. A." notes; References to notes in "Kerr's Cal. Cyo. Code Civ. Proc. "; Wills, contest of, after probate; Sections of the Code of Civil Procedure of California, arranged according to subject-matter) appeal, collateral attack, 1682. appeal, eonsiderat'on on, 1681. appeal, direct attack, 1682. appeal, effect of, as to executor's powers, 1683. appeal, in general, 1679, 2757. appeal, jurisdiction on, 1679, 2759. appeal, notice of, 1679, 2758. appeal, no review in equity, 2762. appeal, parties, 1680. appeal, record on, 1680, 2759. appeal, review of verdict or findings, 1682, 2760. appeal, settlement of statement, 1679, 2758. appeal, time of, 1681. appeal, who are entitled to, 1680. burden of proof, in general, 1670, 2783. burden of proof, on issue of insanity, 1671. certificate of proof of will, 1657. competency of witnesses, 1860. contestant to file grounds of contest and petitioner to reply, 1645. costs and expenses, by whom paid, 1702. evidence, communications with attorneys, 1675, 2749. evidence, declarations of legatees, etc., 1675, 2750. evidence, declarations of testator are incompetent when, 1677, 2754. evidence, declarations of testator, in general, 1676, 2751. evidence, effect of suicide as, upon issue of insanity, 1672, 2740. evidence, expert witnesses, 1674, 2749. evidence, in general, 1670, 2734. evidence, jury as judges of weight of, 1677, 2754. evidence, non-experts, 1674. GENERAL INDEX. 3l2l tReterences are to pages.] "WILLS, CONTEST OF PROBATE OT—fContinuea) evidence, on issue of insanity, 1671, 1672, 2737. evidence, of undue influence, 1672, 2740. evidence, photographs, 2755. evidence, physician as witness, 1674, 2749. evidence, testimony of "casual observers," 1674, 2748. evidence, testimony of "intimate acquaintances," 1673. evidence, testimony of wife as to husband's mental condition, etc., 1675. examination of witnesses, proof of handwriting, 1656. findings and verdict, directing a verdict, 1678. findings and verdict, effect of findings, 1678. findings and verdict, mistrial, 1678. findings and verdict, new trial, 1678. form of answer to contest of probate of will, 1655, form of certificate of proof of will, by two witnesses, and facts found, 1658. form of certificate of rejection of will, 1659. form of contest, on various grounds, of probate of will, 1648. form of demand for jury, on contest of probate of will, 1655. form of demurrer to contest of probate of will, 1654. form of opposition to probate of will and codicils, for unsound-, ness of mind, fraud, etc., 1646. form of order admitting will to probate, and for letters of admin- istration with the will annexed, 1662. form of order admitting will to probate, and for letters testa- mentary, with or without bond, 1660, 1661. form of petition, by public .administrator, for letters of adminis- tration, and contest of probate of will, 1653. grounds of contest, fraud, etc., 1668, 2728. grounds of contest, insanity, 1667, 2720. grounds of contest, invalid execution, 1667. grounds of contest, undue influence, 1668, 2721. how jury is obtained and trial had, 1655. instructions to jury, 1677, 2755. issues, jury trial of, 1669, 2731. judgment admitting will to probate, or rejecting it, 1656. judgment, will, and proofs must be recorded, 1656. jurisdiction, in general, 1664, 2713. jurisdiction, mandate to restore contest, 1664. jury, instructions to, 1677. jury trial of issues, 1669, 2731. nature of proceeding, 1664. nonsuit, power to grant, 2715. no review in equity, 1683, 2762. parties, in general, 1665, 2716. 3122 GENERAL INDEX. [References are to pages.J WILLS, CONTEST OF PEOBATE OF— (Continued) parties, duty of executor to defend, 1666, parties, who may not contest, 1665. pleadings, in general, 1668, 2730. pleadings, undue influence, 1669. pleadings, unsoundness of mind, 1669. testimony reduced to writing as evidence in subsequent contest, 1657. time of contest, in general, 1666, 2718. verdict of the jury, judgment, 1656. what orders are appealable, 1782. who may appear and contest a will, 1629. who may not contest, 1665, 2718. will and proof to be filed and recorded, 1660. WILLS, EFFECT OP VARIOUS PEOVISIONS after-born child, unprovided for, to succeed, 1530, 2666. children, or issue of children, unp-ovided for, to succeed, 1530. gifts to subscribing witnesses are void, 1520. share of after-born child to be taken from what estate, appor- tionment, 1531, 2666. what may pass by wiU, 1516, 2683. who may take by will, 1516. WILLS, EXECUTION OF codicil to vfiU, in general, 1543. codicil to win, refers to the will, 1543. competency of subscribing witness, 1519. contract to make a will, 1546, 2609. creditor is a competent witness, 1520. deed construed in aid of will, 1546, 2616. escrow deed, when not a will, 1546. foreign wills, 1549, 2622. formalities, in general, 1539, 2604. formalities, publication by testator, 1541. formalities, signature of testator, 1540. formalities, subscribing witnesses, 1541, 2606. gifts to subscribing witnesses are void, 1520. holographic wills, by married women, 1548. holographic wills, formalities in executing, 1547, 2617. holographic wills, in general, 1546, 2617. incorporating other papers by reference, 1544. instruments construed not to be wills, 1550, 2623. GENERAL INDEX. 3123 TReterences are to pages.] WILLS, EXECUTION OF—fConUnued) instruments informally executed, invalid as wills, 1542. mere silence does not show acknowledgment, 1542. mutual or reciprocal wills, 1549, 2620, nonintervention wills, 1550, 2622. nuncupative wills, 1548, 2619. nuncupative wills, how to be executed, 1522. nuncupative wUls, requisites of, 1522. publication by testator, 1541, 2605. signature of testator, 1540, 2604. subscribing witness, 1541, 2606. testamentary capacity, as affected by age and physical infirmity, 1538, 2600. testamentary capacity, as affected by fraud, undue influence, etc., 1539. testamentary capacity, in general, 1538, 2594. testamentary disposition, limitation of right, 1536, 2591. testamentary disposition, limitation upon right as to certain per- sons, 1537, 2592. testamentary disposition, right of, 1535, 2590. testamentary disposition, right of wife to support as limiting tes- tator's control, 1537. testamentary disposition, special limitations by statute, 1536. who may make a will, 1514. wUls in form of deeds, in general, 1544. wills in form of deeds, particular examples, 1545, 2608. witness to add residence, 1518. witnesses, attestation by, 1542, 2606. written will, how to be executed, 1516. WILLS, FOBEIGN, PEOBATE OF (See Eeferenees to "Am. Dee." notes; References to "Am. St. Eep." notes; References to notes in "Am. & Eng. Ann. Gas."; Sections of the Code of Civil Procedure of California, arranged according to subject-matter; Wills, probate of; Wills, revoca- tion of) effect of foreign judgments, 1691. in general, 2764. instrument when not entitled to probate as such, 1692. issues to be determined, 1692. jurisdiction of courts, 1691. hearing proof of probate of foreign will, 1688. proceedings on production of foreign will, 1685. wills, proved in other states to be recorded, when and where, 1684. 3124 GENERAL INDEX. [References are to pages.] WILLS nsr GENERAL (See Legacies; References to "Am. Dee." notes; References to ' ' Am. St. Rep. ' ' notes ; References to notes in ' ' Am. & Eng. Ann. Cas. "; References to notes ia "Kerr's Cal. Cyc. Civ. Code"; Sections of the Civil Code of California, arranged ac- cording to subject-matter; Will; Wills, classes of; Wills, eifeet of various provisions; Wills, execution of; Wills, revocation of) advancement during life of testator, effect of, 1532. after acquired property, 1602, 2683. after-born child, unprovided for, to succeed, 1530. charitable, etc., bequests; limitation as to time and amount, 1534. children, or issue of children, unprovided for, to succeed, 1530. conveyance by heirs, is good unless will is proved within four years, 1584. form of holographic wiU, 1518, 2617. form of wiU, 1517. holographic will need not be witnessed, 1518. holographic will, what is, 1518, 2617. in a specific devise or legacy, title passes by wUl, 1583. law governing validity and interpretation of wills, 1587, 2641. liability of beneficiaries for testator's obligations, 1588. nuncupative will, requisites of, 1522, 2619. on death of legatee, before testator, lineal descendants take estate, 1532. republication by codicil, 1522. revocation of conjoint or mutual will, 1519. share of after-born child to be taken from what estate, apportion- ment, 1531. testator's express intention controls as to legacy, 1586. validity of conjoint or mutual will, 1519. validity of will made out of state, 1521. what may pass by will, 1516. who may make a will, 1514, 1516. will as evidence, 1550. will by married woman, 1515. will, form of, 1517. wills pass estate subsequently acquired, 1533. witness, who is a devisee, is entitled to share to amount of devise ' when, 1520. WILLS, NUNCUPATIVE, PROBATE OP (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) additional requirements on petition for probate of, 1727. appeal from order dismissing petition to contest probate of nun- cupative will, 1728. GENERAL INDEX. 3125 tReferences are to pages.] WILLS, NUNCUPATIVE, PROBATE OF— (Continued) contests and appointments, 1727. form of opposition to probate of, 1726. form of petition for probate of, 1724. nuncupative will, granting probate of, 1523. nuncupative will, receiving proof of, 1523. petition must allege what, 1724. "WILLS, PEOBATE OF (See Wills, nuncupative, probate of) admission to probate under special act, 1643. admitting the will to probate, 1630. burden of proof, in general, 1638. burden of proof, presumption of sanity, 1638. collateral attack, 2707. conditional will may be denied probate, 1519. contents of petition for probate of will, 1613. costs of probating will, 1643, 2708. custodian of will to deliver same, to whom, 1612, 2711. decree admitting will to probate, conclusiveness of, 1642, 2707. decree admitting will to probate, effect of, 1641. decree admitting wiU to probate, establishes will prima facie, 1641, 2706. decree admitting will to probate, gives right to letters, 1642. decree admitting will to probate, in general, 1640, 2706. difEerent sheets of paper, connection of, 2705. evidence, alteration of will, effect of, 1640. evidence, as to identity of persons misnamed, 1639. evidence, presumptions as to will, 1640. evidence, testimony of subscribing witnesses, 1638, 2704. evidence, wills executed by blind persons, 1640. executor's renunciation of right to letters by failure to apply for probate of will, 1617. form of affidavit of mailing notice to heirs, 1624. form of afSdavit of posting notice of time set for hearing probate of will, 1622. form of affidavit of publication of notice of time and place ap- pointed for probate of will, 1623. form of certificate of proof of holographic will, and facts found, 1631. form of consent of attorney of minors, etc., to probate of will, 1626. form of forfeiture of executor's right to letters, 1617. form of order requiring third persons having possession of a will to produce it, 1620. form of petition by corporation, for probate of will, 1616. 3126 GENERAL INDEX. [References are to pages.] WILLS, PROBATE 0¥— (Continued) form of petition for probate of will, 1614. form of petition for production and probate of will in possession of third person, 1618. form of proof of personal service of notice, 1625. form of renunciation, by person named in will, of right to letters testamentary, 1616. form of warrant of commitment for failure to produce will, 1620. form, testimony of applicant on probate of wiU, 1628. form, testimony of subscribing witnesses on probate of will, 1627. form, time fixed by clerk for hearing probate of will and petition for letters testamentary, 1622. hearing proof of will after proof of service of notice, 1626. holographic wills, proof of, 1631, 1643, 2708. jurisdiction of courts, as to nonresidents, 1634. jurisdiction of courts, destruction of will, as affecting, 1635. jurisdiction of courts, in general, 1633, 2701. jurisdiction of courts, involves power to postpone hearing, 1635. jurisdiction of courts, prerequisites to, 1634, 2703. nature of proceedings, 1632, 2700. nonappealable orders, what are, 1786. nonintervention wills, probate of, 2774. notice of application for probate, 1636, 2703. notice of petition for probate, how given, 1621, notification to heirs and named executors, 1623. order to enforce production of will or attendance of witnesses, 1625. parties, who can not oppose probate, 1636. parties, who may apply for probate, 1636. pleadings, petition for probate, 1637. pleadings, what are the issues, 1637. probate of after-discovered will, 1642. probate of holographic wiU, 1643. probate of nonintervention wills, 2774. production of will in possession of third persons, 1618. revoked will can not be admitted to probate, 1643. who may appear and contest the will, 1629. who may petition for probate of will, 1613. will can not be annulled in part, 1642. will procured by fraud, etc., may be denied probate, 1515. WILLS, PEOBATE OP LOST OR DESTROYED (See Sections of the Code of Civil Procedure of California, arranged according to subject-matter) burden of proof, 1723. character of evidence required as to, 1721, 2772. must have been in existence at time of death, 1717. GENERAL INDEX. 3127 tReferences are to pages.] WILLS, PBOBATE OF LOST OR DESTROYED— ^CowMnwed; pleading destruction or loss, 1721. presumption as to revocation is overcome when, 1722. presumption incident to loss or destruction, 1721. proof of execution and contents, 1721. proof of lost or destroyed will, 1713. restraining order in favor of claimants, 1720. to be certified, recorded, and letters thereon granted, 1718. WILLS, PROPERTY PASSING BY, AND VESTING OF INTER- ESTS (See Legacies) accumulations, continuance of trust, 1601, 2682. additional legacies, 2672. ademption and abatement of legacies, 1599. advancements, 2677. after-aquired property, 1602, 2683. annuity, what bequest is not, 1601. application of legacies to payment of debts, 1599, 2679. beneficiaries of benefit certificates, 1601, 2683. community property, testator has no power to authorize sale of wife's interest in, except for payment of debts, 1602, 2684. community property, widow's right to assert title to her interest in, 1602, 2683. conditional and contingent devises, 1600, 2680. creditor as a legatee, 1600, 2680. demonstrative and cumulative legacies, 1593, 2672. devises and bequests, certain words mean what, 1590 devises and bequests, common-law distinctions abrogated, 1591. devises and bequests, executor may purchase legacy, 1591. devises and bequests, in general, 1589, 2669. devises and bequests, particular description as a limitation, 1591. devises and bequests, sales of stock appurtenant to lands, 1592. devises .and bequests, substitution of land for legacy, election, 1591. devises and bequests to unnamed heirs, 1592. election by widow by acceptance of devise, 1605. election by widow by acts in pais, 1605, 2688. election by widow, effect of, 1604. election by widow, in general, 1603, 2685. election by widow, taking bond by descent and under the will, 1604. election by widow, under mistake or misapprehension, 1605, 2688. election by widow, where dower right prevails, 1604, 2688. forfeiture of legacies, 2696. future interest, vesting of, 1600. general legacies, 1592, 2670. Kansas, estates tail in, 2696. 3128 GENERAL INDEX. [References are to pages.] WILLS, PEOPEETY PASSING BY, AND VESTING OF INTER- ESTS— fCoretrnMedj life estate, in general, 1594, 2672. life estate, life tenant purchasing with certain title, 1594, 2673. life estate, power of devisee to sell, 1595, 2673. payment of legacies, 1597. payment of legacies, interest, 1598, 2675. payment of legacies, on bond of legatee, 1599. preferred legatees, 1600. residuary clause, where life, estate is specifically bequeathed, 1597. residuary legacies, gifts when payable out of residuum, 1597, 2674. residuary legacies, in general, 1595, 2674. residuary legacies, intestacy as to residuum, 1596. residuary legacies, residuary devise of life estate, 1596. residuary legacies, residuum of lands under undelivered deeds, 1597. specific legacies, 1592, 2670. substitutional legacies, 2672. vesting and devesting of estate, altered circumstances, 1609. vesting and devesting of estates, contingent remainders, 1608, 2692. vesting and devesting of estates, deeds as affected by deeds in escrow, 1608. vesting and devesting of estates, expectancies, 1607. vesting and devesting of estates, gifts causa mortis distinguished, 1607, 2690. vesting and devesting of estates, gifts inter vivos distinguished, 1607, 2690. vesting and devesting of estates, in general, 1606, 2689. vesting and devesting of estates, lapsed legacies and devises, 1608, 2694. vesting and devesting of estates, property subject to trust, 1608. vesting and devesting of estates, property under contract of sale, 1608. WILLS, REVOCATION OF antecedent will, not revived by revocation of subsequent will, 1525. application of provision as to, 1587. by marriage, etc., 1552, 2626. by subsequent will, 1552, 2625. contract of sale not a revocation, 1527. conveyance, when a revocation, 1529. conveyance, when not a revocation, 1528. effect of marriage of a man on his will, 1526. effect of marriage of a woman on her will, 1527. evidence of revocation, 1524. facts and evidence relating to, 1551. in general, 1551. GENERAL INDEX. 3129 tReferencea are to pages.] V7ILLS, REVOCATION OF— (Continued) mortgage not a revocation, 1528. not affected by altered cireumstances, 1609. revocation by marriage, 1526, 1527. revocation by marriage and birth of issue, 1526. revocation by revocation of duplicate, 1525. revocation by subsequent will, 1525. revocation of codicils, 1529. revocation of trust devise, 1552. revocation of will procured by fraud, etc., may be declared void, 1515. revoked will can not be admitted to probate, 1643. Vfritten will, how revoked, 1524. WITNESSES (See Eeferences to notes in "Am. & Eng. Ann. Gas."; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Wills, execution of) compelling attendance of, on proceedings to lease decedent's real estate, 988. compelling attendance of, on proceedings to mortgage decedent's real estate, "980. heirs and insane persons as, in contest of will after probate, 1709. may be examined on objections to order of sale of real estate, 831. on proceedings to commit alleged insane person, attendance and ex- amination of, 279, suits on claims against estates, plaintiff's statutory inability to tes- tify, 745. value of evidence of medical experts, 1674. who can not testify, 1808. who can not testify in action against estate of decedent, 1852-1861. who may-testify in action against estate of decedent, 1843-1852. WORDS (See Wills, construction and interpretation op) WOEDS AND PHEASES (See Eeferences to "L. E. A." notes; Eeferences to notes in "Am. & Eng. Ann. Cas. "; Eeferences to notes in "Kerr's Cal. Cyc. Civ. Code"; Wills, construction and interpretation of) "adoption," defined, 11. "adverse party," who is not, 1839. "annuity," meaning of, 1581. "assignor," who is not, 1839. "claim against an estate," defined, 700. "claimant," meaning of, 700. "claim," includes what, 710, 1840. 3130 GENERAL INDEX. [References are to pages.] WORDS AND FHUASES— (Continued) "claim," meaning of, 700. "creditors," defined, 369. ' ' demand, ' ' does not include what, 700. "demand," includes what, 1840. "demand," when not a debt or claim, 910. "due," meaning of, 700, 710. "in kind," meaning of, in distribution, 134S. "family," defined, 568, 599. "family" of owner, widow is, 612. "general legacies," what are, 1581. "homestead," defined, 596, 620. "incapacity," defined, 474. "incompetent," defined, 177, 474. "jurisdiction," defined, 296. "may" means "must," when, 565. "patient" of insane asylum, defined, 284, 291. "probate homestead" differs from ante-mortem homestead, 620. "relatives," defined, 373. "representative," includes whom, 1840. "residuary legacy," embraces only what, 1581. "spendthrift," defined, 263. "succession," defined, 23. "transaction," embraces affairs, ^840. "to embezzle," defined, 542. "wages of servants," include what, 701. WKIT OF CBBTIORAEI (See Certioraki) "WEIT OP EEEOR (See Appeal) WRIT OP HABEAS CORPUS (See Habeas corpus, etc.) WRIT OP PROHIBITION public administrator's right to, 1510. WRIT OP REVIEW office of, on appeal from decree of distribution, 1382. WRONGPUL ACT (See References to notes in "Kerr's Cal. Cyo. Code Civ. Proc") WRONGPUL DEATH (See References to "L. R. A. " notes)