an appeal from "a special order made after final judgment," said: "But we think that the final judgment there referred to is the one mentioned in subdivision 1, viz. a final judgment in an action or special proceeding commenced in a superior court, or brought into a superior court from another court. It seems to us quite clear that the appealable judgments and orders made in probate proceedings are all enumerated in subdivision 3, and, as this order is not therein mentioned, it is not an appealable order." In Estate of Walkerly, 94 Cal. 352, 29 Pac. Rep. 719, the court, through McFarland, J., said: "The general rule is well established that appeals can only be taken from such judgments or orders in probate proceedings as are mentioned in subdivision 3 of section 963 of the Code of Civil Procedure." The court further added as follows: "And that the order here appealed from is not a 'special order made after final judgment,' within the meaning of the second subdivision of said section 963, is also settled by the authorities first above cited. Estate of Dean, 62 Cal. 613; In re Moore's Estate, 86 Cal. 58, 24 Pac. Rep. 816; Estate of Wiard, 83 Cal. 619, 24 Pac. Rep. 45; Estate of Calahan, 60 Cal. 232. If it were otherwise, the third subdivision of said section could be entirely disregarded by simply assuming that a probate order not therein mentioned was a final judgment, and that an order refusing to vacate it was a "special order made after final judgment." In Estate of Bauquier, 88 Cal. 302, 26 Pac. Rep. 178, 532, this court held that "the provisions in subdivision 2 of section 963 of the Code of Civil Procedure, which authorizes an appeal to be taken to the supreme court from an order granting or refusing a new trial,' embraces all such orders, whether made in probate proceedings or in civil actions." The reasons for the opinion are given therein, and need not be repeated here. The later case of Estate of Walkerly, cited supra, plainly indicates an intention in cases like the present to adhere to the former rulings of this court upon the subject of appeals from probate proceedings by confining such appeals to the cases enumerated in the third subdivision of section 963, except as clearly provided for by other sections of the Code. The statutory proceedings provided for in probate matters lead up to numerous independent decisions, some of which possess most, if not all, the essential requisites of a judgment. The question is, are they such final judgments as are contemplated by the Code when it gives an appeal from a special order made after final judgment? judgment is the final determination of the rights of the parties in an action or proceeding. Code Civil Proc. § 577. "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an 'order.'" Id. § 1003. The supreme court, in Loring v. Illsley, 1 Cal.

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27, in discussing the distinction between an order and a final judgment, said: "The former [an order] is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice or some question collateral to the main issue presented by the proceedings, and necessary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in carrying the execution into effect." In Gilman v. Contra Costa Co., 8 Cal. 57, it was said: "An order is the judgment or conclusion of the court upon any motion or proceeding. It means cases where a court or judge grants affirmative relief, and cases where affirmative relief is denied." Every order of a court or judge is in one sense а judgment. In New York it was held that a decision upon a demurrer was a judgment. King v. Stafford, 5 How. Pr. 30. But it is not a judgment from which an appeal can be taken. Elwell v. Johnson, 74 N. Y. 80. The term "final judgment," from which an appeal can be taken under the first subdivision of section 963, Code Civil Proc., evidently means the ultimate or last judgment which puts an end to the suit or proceeding. In Metcalfe's Case, 11 Coke, 68, "it was resolved that no writ of error lies till the last judgment." Lord Ellenborough declared in Samuel v. Judin, 6 East, 333: "Error can only be brought on final judgment." If the term "final judgment," as used in the first subdivision of section 963, applies to "a judgment or order admitting or refusing to admit a will to probate," then an appeal would lie to this court therefrom, under such first subdivision, and the provision in the third subdivision would be surplusage. We think the term "final judgment," as used in the section under consideration, applies only to those judgments known at common law as "final judgments," and that, as to the statutory determinations termed "orders or judgments" defined in the third subdivision, the term "final judgment" does not apply; hence the right to appeal is expressly given from certain of such "orders or judgments." As they are not final judgments, a special order made subsequent to their entry is not appealable, for the right to appeal from the special orders is only given in case of those made after final judgment. The appeal from the order permitting the amendment of the statement, not being an appealable order, should be dismissed.

Upon a careful survey of the whole testimony embodied in the statement on motion for a new trial, it cannot be said there was an abuse of discretion by the court below in granting the motion for a new trial. Much of the evidence upon which the theory of insanity was based related to a period ranging from 15 to 18 years prior to the execution of the will, and was not conclusive in character, being a relation

of facts and a description of conduct which might result either from a disordered mind or from uncontrolled passion. That subsequent to that time, and for a period of many years, he was a prudent, careful, shrewd man of business, accumulating property, and managing it with discretion, is abundantly proven. That he was a man of objectionable personal habits is apparent. Perhaps the court below was of opinion that evidence, uncontradicted, of capacity to accumulate property, to purchase, hold, sell, and convey with acumen, was evidence of capacity to convey to take effect after death, which is all there is of a will. Perhaps there was something in the attitude or appearance of the witnesses for contestant, or in their manner of testifying, that led the court, in the exercise of a wise discretion, to conclude that the matters in issue should again undergo investigation. It is sufficient for us to know that there was a substantial conflict in the evidence, and that the judge, who was entirely familiar with all its details, and in a much better position to give due weight to all its parts, has exercised the discretion conferred upon him by granting a new trial. To analyze the evidence in detail, and express an opinion of the value of its several parts, might tend to influence the result in a retrial of the issues of fact. This is not desired. On the contrary, the cause should be again tried, as though it had never before undergone investigation. It is recommended that the appeal, so far as it purports to be an appeal from the order permitting the amendment of the statement, be dismissed, and that the order appealed from granting a new trial be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the appeal from the order permitting the amendment of the statement is dismissed, and the order granting a new trial is affirmed.

(8 Cal. 591)

FLOYD et al. v. DAVIS et al. (No. 14,551.) (Supreme Court of California. June 12, 1893.) TRUSTS-CONSTRUCTION-INTEREST-ATTORNEYS' FEES-DISTRIBUTION.

1. Where property was left in trust, with provisions for the payment out of the proceeds of various sums to several institutions in the order named, with residue to other institutions, interest will not be allowed, to the detriment of the residue, to one of the institutions for which a special sum was to be paid, where for a time there were no funds from which to pay the institution, and where, after that, delay in payment was due to its unauthorized refusal to accept anything unless the entire amount was paid to it in a lump sum.

2. Under the provision of the trust deed that out of the proceeds of the trust fund there should be erected statuary "well worth $100,000," an item for models, which proved unsatisfactory and were rejected, should not be de

ducted from the $100,000, but from the main trust fund.

3. Under the provision that $150,000 should be expended in the erection and maintenance of free baths, under the direction of certain trustees, compensation of the trustees for services relative to the baths should be charged to the bath fund.

4. Under the provision that $700,000 should be expended for purchasing land and constructing and putting thereon a telescope, expenditures for attorneys' services for the express benefit of the telescope fund, and expenses for traveling on the business connected with the telescope, should be charged to the fund therefor.

5. In an action brought by the trustees against the beneficiaries for settlement of their accounts, and for leave to make a partial distribution to the residuary donees, where the various parties asked for allowances for interest, expenses, etc., each trust should charged with its own attorneys' fees.

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6. Under the provisions of a trust deed, that, after making the various specific payments in the order named therein, the residue should be turned over to certain institutions, the court had no authority to order payments to the residuary donees before the discharge of the other trusts, though it could be done without possibility of injury to them.

In bank. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by Richard S. Floyd and others against Horace Davis and others. Decree, from which defendants appeal. Reversed.

S. W. Holladay, John H. Boalt, Nathaniel Holland, and Harold Wheeler, for appellants. Horace W. Philbrook, Ira P. Rankin, John O. Earl, and Boyd, Fifield & Hoburg, for respondents.

GAROUTTE, J. This action was brought by the plaintiffs, as surviving trustees of the James Lick trust, against the various beneficiaries under the trust deed, for two purposes: (1) That the accounts of the trustees might be examined, allowed, and settled, and their administration of the trust sanctioned; (2) that they might have the permission of the court to pay over to the California Academy of Sciences and the Society of California Pioneers, residuary donees, a part of what would in the end be coming to them. This application involved a modification of a prior decree, which had declared that no money or property was to be paid or transferred to the residuary donees until the preceding trusts should have been fully executed and performed. This application on their part arose from the fact that by the sale of the Lick House property in October, 1888, they had become possessed of ample funds to complete all the prior trusts, and to pay over to the residuary donees a large part of what would be coming to them. The various. beneficiaries named in the trust deed appeared by answer and cross complaint, and the trial resulted in a decree of the court settling the accounts of the trustees up to the 6th day of September, 1889, and granting them permission to pay the said residuaries, the

Pioneers and Academy of Sciences, $300,000 each. The decree also allowed the School of Mechanical Arts interest upon the sum of $535,000 from October, 1888, that sum being the amount due from the trustees for the purpose of founding the school. Various allowances were also made from the main trust fund for the payment of attorneys' fees and other expenses. From the foregoing decree of the court the Pioneers and Academy of Sciences have appealed upon the following grounds: (1) In deciding and adjudging the sum of $1,025, expenses incurred for legal services on account of the telescope, to be charged to the general fund, and in diminution of the residue. (2) In deciding and adjudging that the fees allowed to the attorneys, John H. Boalt, John B. Mhoon, and Horace W. Philbrook, aggregating $1,750, be paid out of and charged to the general fund in diminution of the residue, instead of making the fees of said attorneys payable by their respective clients. (3) In deciding and adjudging that the $661 disbursed by the president of the Lick trustees for expenses in traveling to Cleveland, Ohio, on the special business of the Lick telescope, be paid out and charged to the general fund in diminution of the residue, and not out of the telescope fund. (4) In deciding and adjudging that the $849.90, expenses incurred by the trustees for models, etc., of the historical statuary, be paid out of and charged to the general fund in diminution of the residue, and not charged to the special trust providing for such statuary. (5) In deciding and adjudging that interest be allowed to said California School of Mechanical Arts. And (6) in deciding and adjudging that $3,500 shall be paid to Rankin and Earl, trustees. of the bath house trust, out of the general fund. The School of Mechanical Arts has also appealed from that part of the decree (1) permitting the Lick trustees immediately to pay over to the California Academy of Sciences and to the Society of California, Pioneers the sum of $300,000 each before their execution of the other trusts precedent mentioned in the trust deed; (2) from that part of the said decree which fixes the date of October 5, 1888, as the date from which interest is to be paid on the sum of $535,000, provided in the fourteenth trust, these defendants claiming that interest should be allowed on said balance from the 31st day of December, 1884, to the final payment of the whole of said balance.

The trust deed of James Lick measures the powers of the trustees, and is their warrant of authority. Under that deed it is made their duty to convert the trust property into money, and out of the proceeds, among other things: "Three. To expend the sum of $700,000 for the purpose of purchasing land and constructing and putting upon such land a powerful telescope, (superior to and more powerful than any telescope

ever yet made.)" sum of $150,000 in the erection and maintaining in the city of San Francisco of free baths, under the direction of certain trustees, [naming them,] with authority to purchase sites," etc. "Thirteen. To erect, under the supervision of the said parties of the second part and their successors, at the city hall in the city and county of San Francisco, a group of bronze statuary, well worth $100,000. Fourteen. To found and endow, at a cost of $540,000, an institution to be called the 'California School of Mechanical Arts,' the object and purposes of which shall be * * The institution shall be founded and endowed under the direction of J. D. B. Stillman, Horace Davis, A. S. Hallidie, John Oscar Eldridge, John O. Earl, and Hon. Lorenzo Sawyer, and the survivors of them, who are directed to acquire the site thereof, and form a corporation * *." "Eighteen. After dischar

"Eleven. To expend the

ging the trusts and making the payments herein before mentioned in the order heretofore set forth, to make over and transfer the residue of the proceeds of the property hereby transferred and conveyed, and intended to be, in equal proportions, to the California Academy of Sciences and the Society of California Pioneers."

It appears that since the sale of the Lick House property in October, 1888, the trustees have had ample funds to carry into execution the various trusts not fully administered. For reasons hereafter noticed, they cannot be charged with laches as to the founding of the School of Mechanical, Arts; and as to the causes which have prevented them since the date that funds have come into their hands from erecting the statuary at the city hall, and finally closing up the telescope, free bath, and other trusts, we have no knowledge, as this appeal is before us upon a judgment roll, which does not include the evidence. As to the conduct of these various trusts by the trustees the court has found "that all the trusts provided for in said trust deed have been executed as speedily as practicable by the plaintiffs and their predecessors, who have at all times performed their duties diligently, faithfully, honestly, intelligently, and economically; and that, although there has been a great delay in executing the trust contained in the trust deed, * said delay did not occur through any fault or neglect of said trustees." This is a finding that the trustees have thus far done their work faithfully, diligently, and well. It is not attacked by any of the parties interested, and, as already stated, the evidence upon which it is based is not before us; hence we are not in a position to review the finding.

It was error in the trial court to allow interest to the School of Mechanical Arts upon the money coming to that corporation, and to charge the amount of such interest

to the general fund of the trustees, thereby reducing pro tanto the residue to which the Academy of Sciences and Society of Pioneers are entitled. The School of Mechanical Arts insists that interest should have been allowed it from a time long prior to 1888. A complete answer to this contention is that the Lick trustees had no funds in their hands prior to October, 1888, to which the school was entitled, and, in the absence of inexcusable delay on the part of the trustees in carrying out the various prior trusts, (and we do not hold that such delay would justify it,) no principle of law or justice would entitle the school to interest when no funds were on hand applicable to its objects and purposes. The doctrine of Floyd v. Forbes, 71 Cal. 588, 12 Pac. Rep. 726, completely destroys appellants' contention in this regard, for in that case interest was denied the telescope trust, although the funds which were to be applied to the execution of that trust were in the hands of the trustees. Floyd v. Forbes is also squarely opposed to the decree of the trial court in allowing interest to the School of Mechanical Arts upon the amount of its endowment fund from October, 1888. It was held in that case "that the proceeds of the trust property constitute one fund out of which the trustees are to execute the several trusts specified in said deed, and that the profits arising from investments of money in their hands are to be treated as a part of such fund, and not as accruing for the benefit of any of the said trusts in the execution of which a definite sum is required to be paid or expended, so as to increase the amount of such payment or expenditure." The foregoing language of the court has no uncertain meaning, and we can only account for the claims of the School of Mechanical Arts for interest upon the amount to be applied to the execution of its trust, for the reason that Floyd v. Forbes had not been decided when it first advanced such plea. While the learned justice used certain language in the opinion of the court in that case as to "unnecessary or great delay" by the trustees in the execution of the trust, nothing was decided upon that line, but, to the contrary, by the language itself, the court expressly refrained from passing upon the results which would follow to the beneficiaries regarding the accumulated profits if the trustees were guilty of unnecessary delay in carrying out the objects and purposes of James H. Lick, as manifested by his trust deed. Floyd v. Forbes closes every avenue through which interest might be claimed by the School of Mechanical Arts save the single one of delay resulting from neglect upon the part of the Lick trustees to perform their duties under the trust. asmuch as the "school" had the right to call to its aid the power of the court to compel a prompt administration of its trust by the Lick trustees, and inasmuch as the trustees had no direct interest in the residue of

In

the trust estate, but all of said residue passes to the Academy of Sciences and Society of California Pioneers, it is not plain that "unnecessary delay" upon the part of the trustees would give the school a right to interest upon the amount coming to it under the trust deed. Certainly, under no aspect of the case could funds be taken from the money received from the Lick House sale to satisfy such claim for interest, for be yond any doubt that would be reducing the residue which Lick intended should be applied in other channels, and the Academy of Sciences and Pioneers have the same rights to the "residue" that the school has to the sum of $540,000. Yet the claims of the school for interest, as indicated by the complaint, are made in no way dependent upon the fact as to whether profits had accumlated upon the main trust fund, but its pleading outlines a right to interest by reason of "great delay" upon the part of the trustees, even though the successful assertion of such rights should deplete the residue of all the original fund derived from the Lick House sale. Such a course can neither be law nor equity. The school has an advantage over the academy and Pioneers in being entitled to priority of payment. In all other respects they stand upon the same plane, and are entitled to the same rights. Neither is favored above the other, and one cannot be allowed to encroach upon the rights of the other. The amount of the residue is entirely immaterial as furnishing light upon the question of the rights of the school to interest. If it is entitled to interest under the law it is entitled to that interest though it drain the main fund, and leave the residuary donees without a dollar. Neither is it clear that accumulated profits arising from unnecessary delay would give the school the right to interest; for, as said in Floyd v. Forbes, the profits from investment pass to the main fund, and become a part thereof. Thus the profits would seem to stand on common ground with the proceeds of sales of real estate, and to be expended only for the same causes. But in the present case we have neither an allegation by the school of unnecessary delay upon the part of the trustees, nor a finding of the court to that effect. The court finds that there was great delay in executing the trust, but that such delay did not occur through any fault or neglect of said trustees. Great delay has occurred, but unnec essary delay has not occurred, and the very delay of which the school now complains, and upon the basis of which it asks interest, may have been occasioned, as far as the record indicates, by the acts of the party now seeking to gain an advantage by reason of such delay.

A second conclusive reason why the school's claims in this regard should be denied is apparent from the record. No funds came to the hands of the trustees which

could be applied to the execution of such trust until October, 1888. The school never having become entitled to the principal fund could not have been entitled to interest upon that fund. If authority were necessary to justify a denial of its claims for interest prior to that date, Floyd v. Forbes is that authority. From October, 1888, until October, 1890, the amount to which the school was entitled was in the hands of the Lick trustees, but the school declined to touch the money unless the entire amount was paid to it in a lump sum, and appealed to the court to support its contention to that effect. This position of the school was held untenable by the court, October 7, 1890, in the case of Floyd v. Rankin, 86 Cal. 159, 24 Pac. Rep. 936; consequently the two years of delay occasioned by this litigation is fairly attributable to its own conduct, and it cannot take advantage of its own default or mistake, to the loss of the residuary donees, even though its claims were advanced in the utmost good faith. The date of the decision of Floyd v. Rankin forms the last chapter in the history of this case, viewed by the record before us, and for the reasons given we see nothing to support the decree of the trial court in awarding interest to the School of Mechanical Arts. It is urged in its behalf that the fact of the delay being inevitable, and that the trustees have done their full duty, are equally immaterial. Upon this question the dictum of Floyd v. Forbes, relied upon by the school, indicates to the contrary, and clearly intimates that the unnecessary or great delay which might give it rights to interest should arise from a failure of a proper performance of the trust by the trustees. But, be that as it may, there is nothing in the record, looking at the case from any standpoint, that entitles the School of Mechanical Arts to interest.

It is insisted that an item of $849.90 for models, diagrams, etc., furnished under an advertisement by the trustees, to be used in the erection of the statuary at the city hall, should be charged to the statuary trust, and not to the general trust fund. These articles proved unsatisfactory, and were rejected, and thus were of no assistance in carrying out this trust. The trust deed provided that the group of statuary was to be "well worth $100,000." The meaning of this provision of the deed is that $100,000 should be honestly and intelligently expended in the erection of the statuary. This contested item did not enter into the cost of construction, and in no way added anything to its value. After this money had been expended, the balance, to wit, $99,150, was not sufficient to erect a group of statuary "well worth $100,000." The item should be charged to the main trust fund.

The item of $3,500 for services rendered by Rankin and Earl as trustees in the erection of the free baths should be charged to the bath trust. The trust deed provides

that $150,000 is to be expended in the erection and maintaining of free baths. These parties are entitled to compensation as trustees of the free bath trust, but that compensation should come from the trust fund covered by their trust. Their services were rendered in the matter of the erection and maintaining of the free baths, and clearly become a charge upon that trust fund by the language of the trust deed itself.

The items of $1,025 for legal services for the express benefit of the telescope trust, and of $661 traveling expenses of the president of the board of trustees to Cleveland on telescope business, should be charged to the telescope trust. By the trust deed, $700,000 was to be devoted to purchasing a site and constructing the greatest telescope ever made. That was the limit of the appropriation, and the foregoing items were expended in the execution of that trust. Those expenditures were as necessary, and as much a part of the cost of the site and construction, as freight upon material, or labor upon the grounds.

The items of attorneys' fees allowed to attorneys appearing in this action for the various beneficiaries under the trust deed should not be charged to the main trust fund, but are matters standing between those trusts and the attorneys. Plaintiffs brought this action to have their accounts settled, and to have a partial distribution to the residuary donees, the partial distribution being a matter in which the residuary donees were directly interested, and in which the plaintiffs had no special concern. The accounts were found correct, and are approved by the court, but the School of Mechanical Arts filed a cross complaint, asking for affirmative relief. This complaint was controverted by many of the beneficiaries, and others also appeared by answer, asking affirmative relief in the nature of allowances for expenses, attorneys' fees, etc. From that time to the present the action has been transformed into a contest between the various trusts created by the trust deed as against the academy and Pioneers representing the residue, each trust zealously guarding its own interests, possibly some attempting to protect their respective trust funds at the expense of the "residue;" while it has been of equal importance to the "residue" that the various expense accounts should be paid by the secondary trusts. For these reasons each particular trust should be charged with its own attorney's fee.

The court had no authority to order paid to the Academy of Sciences and the Society of California Pioneers $300,000 each as a portion of the "residue" eventually coming to those beneficiaries. While there would be but the slightest possibility of injury resulting to the remaining trusts from such action of the court, and while it is the duty