court rendered judgment for plaintiff, and the defendant J. J. Rauer appeals from the judgment and from an order denying a new trial.

There are numerous assignments of error in the record, but the main point presented in the briefs of appellant is that the evidence does not justify the findings; the only other point being that the findings do not support the judgment. We think, however, that the evidence is clearly sufficient to justify the firdings that defendant Burris committed the fraud charged, and that appellant was a party to said fraud; and it would serve no useful purpose to review the evidence here. It is also clear that the findings are full enough, and amply support the judgment. Judgment and order aflirmed.

(99 Cal. 290)

CITY OF MONTEREY v. MALARIN et al. (No. 15,006.)

(Supreme Court of California. Aug. 15, 1893.) HIGHWAYS-OBSTRUCTION-JUDGMENT-WHEN SUPPORTED BY FINDINGS.

In an action to abate an alleged obstruction of a street the court found that defendant was the owner and had been in possession of the land claimed as a street for more than 20 years; that prior to such ownership and possession it had been used continuously for more than 20 years as a street, but was not so used after that time. Held that, in the absence of a further finding that the owner ever intended to dedicate such land for a public street, or acquiesced in or had knowledge of such use, a judgment for defendant was supported by the findings; Pol. Code, § 2619, which provided that "all roads used as such for a period of more than five years are highways," having been enacted after such user ceased, and repealed before the action was brought. Department 2. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by the city of Monterey against Maria Malarin and others to abate a nuisance caused by the obstruction of a highway, and to enjoin defendants from maintaining the same. There was a judgment for defendants, and plaintiff appealed on the judgment roll. Affirmed.

W. A. Kearney, for appellant. S. F. Geil and W. M. R. Parker, for respondents.

FITZGERALD, J. This is an action by the city of Monterey, a municipal corporation, to abate an alleged public nuisance caused by the obstruction of an alleged public highway of that city, and to enjoin the defendants from further maintaining the same. The complaint, in substance, alleges that plaintiff is the owner and entitled to the possession and control of the land there in described, and that the same is a public street within its corporate limits; that de fendants have erected and maintained upon said street certain buildings and fences which obstruct the street and are a nuisance. These allegations are specifically denied by the answer. Defendants had judgment, and

plaintiff appeals upon the judgment roll alone.

The court, in its decision, found: "(2) That plaintiff was not at the time of the commencement of this action, nor at any time before or since, the owner, or entitled to the possession or control, of the strip of land described in plaintiff's complaint, or any part thereof. (3) That the defendant Maria Malarin is the owner in fee simple of the tract of land described in the complaint, and that the other defendants herein occupy and possess said tract as the tenants of said defendant Maria Malarin. (4) That the de fendant Maria Malarin and her grantors have been in the actual, open, notorious, exclusive, continuous, and adverse possession of all of the land described in the complaint herein as owners, and have exercised acts of ownership over the same, since 1870, and have during all that time builded, kept, and maintained valuable buildings and improvements on the same. (5) That such buildings and improvements have, during all the time since the year 1870, been by said defendant Maria Malarin erected and maintained in such a manner as to entirely obstruct and prevent any use of the land described in the complaint, or any part thereof, as a public street or highway. (6) That that portion of the land set out in the complaint described as follows, to wit, [description omitted,] was open and uninclosed, and was a convenient way of travel for the public from Alvarado to Tyler street, and it was traveled and used continuously and uninterruptedly by the public as and for a public highway or street in said city of Monterey for more than twenty years immediately prior to the year 1870, and the same was known as 'Spence' or 'Pence' street. but since the year 1870 no part of the said land has been traveled over or used in any respect by the public as a street or other wise; that neither the board of supervisors of Monterey county nor the city authorities of Monterey city have ever accepted the said land as a street or road or highway. (7) That no part of the land described in the plaintiff's complaint is a public street known or called 'Spence Street,' or any other street, or any part of a public street, within the corporate limits of the city of Monterey or elsewhere; and that the buildings, houses, sheds, and fences erected and maintained upon said premises are not an obstruction or an encroachment on any public street, and do not constitute a nuisance in any public street or highway. (8) That prior to the year 1835 the pueblo of Monterey was the owner in the fee of the lands and premises described in the complaint herein; that in said year said pueblo, by its legally constituted authorities, conveyed its title to Jose Maria Herrera as a pueblo lot; that since said conveyance the defendant Maria Malarin has by mesne conveyances from said Jose Maria Herrera ac

quired and now holds the whole of the title so conveyed from said pueblo for said tract of land."

It is claimed by appellant that the findings do not support the judgment. This claim is urged upon the ground that the use of the strip of land described in the complaint by the public as found by the court in its sixth finding was such as to constitute it a public street, within the meaning of section 2619 of the Political Code; that said section is in the nature of a statute of limitations, therefore a finding by the court of knowledge by the owner of such user was not material or necessary. The section referred to provided that "all roads used as such for a period of more than five years are highways." This section was enacted subsequent to 1870, and was repealed by the act approved February 28, 1883. Nor was there any such general or local law upon the subject applicable to or concerning public highways in Monterey county prior to 1870. The intention of the owner was therefore absolutely essential in order to constitute a dedication to the public use of the strip of land in question, and the acceptance and user thereof by the public for this purpose are indispensable to the validity of the dedication, but such acceptance may be shown by mere user, without any formal action in relation thereto by the municipal authorities. As there is no finding by the court that the owner ever intended or offered to dedicate to the public the strip of land referred to for a public street, or ever acquiesced in or assented to the use thereof for such purpose, or ever had any knowledge of such use by the public, or that the municipal authorities ever performed any act or recognized or asserted any right whatever thereto, it follows that the judgment appealed from should be affirmed, and it is so ordered.

We concur: DE HAVEN, J.; McFARLAND, J.

(99 Cal. 216)

In re BLINN. ADAMS v. BRADLEY. (No. 15,126.) (Supreme Court of California. Aug. 11, 1893.) EXECUTORS AND ADMINISTRATORS-REMOVAL.

Hitt. Gen. Laws, §§ 5794, 5795, provide that when one of several executors or administrators shall die, become lunatic, or otherwise incapable of executing the trust, or his letters shall, have been revoked according to law, the other shall proceed and complete the trust, and if all be so disabled the probate court shall issue new letters. Section 5979 empowers the probate judge, on learning of certain grounds for removal,-inter alia, incompetency to act,to suspend the executor or administrator, and cite him to show cause why his letters should not be revoked. Held that, where a sole administratrix has been adjudged insane by the county court, she has become "incapable," and not merely "incompetent to act," and the record of said court being sufficient evidence of her insanity, in the absence of proof that she has since recovered, the probate court may

grant new letters without citation to her to show cause.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; John Ellsworth, Judge.

Proceedings by W. J. Adams, guardian, to sell the interest of Helen B. Blinn, an insane person. H. W. Bradley, Jr., made a bid for the property, on certain conditions as to title. The guardian accepted the bid, and reported it for confirmation. From the judgment confirming the sale, Bradley appeals. Affirmed.

Jarboe & Jarboe and R. H. Countryman, for appellant. Selden S. & Geo. T. Wright, for respondent.

HAYNES, C. The court below granted an order for the sale of the interest of Helen B. Elinn, an insane person, in certain real estate. Appellant, Bradley, made a bid in writing therefor of the sum of $24,750, "subject to confirmation by said court: provided that the title to said lot is perfect and merchantable, and is free from all liens and incumbrances of every kind and character.

If the title is not perfect as of record, or said property is incumbered, and the incumbrances are not removed after five days' notice thereof, then said deposit is to be immediately returned. The undersigned to have five days after the receipt of complete abstract of title of the said lot in which to examine the same." Respondent accepted the bid, with the said conditions attached, reported the sale to the court, and asked for confirmation. Appellant filed objections to the confirmation, which objections were submisted to the court upon an agreed statement of facts, whereupon the court made an order confirming the sale to appellant, and directing a conveyance, from which order this appeal is taken. The facts appear in the bill of exceptions, and, somewhat condensed, are as follows:

In 1872, Samuel P. Blinn died intestate, leaving said Helen P. Blinn, his widow, and three minor children. The widow was duly appointed administratrix, was qualified, and letters of administration were regularly issued to her. Shortly thereafter, and before she had made any progress in the settlement of the estate, she was adjudged insane by the county court of the city and county of San Francisco, and sent to the state asylum for the insane. Thereupon, William H. Patterson was appointed her guardian, but the records in that proceeding do not show that he ever qualified as such. George B. Bradford was duly appointed and qualified as the guardian of the children. Shortly after Mrs. Blinn had been adjudged insane, Patterson, as her guardian, and Bradford, as the guardian of the children, petitioned the probate court for the appointment of Bradford as administrator of the estate of Samuel P. Blinn, alleging the usual jurisdictional facts, and that Mrs.

Blinn had been adjudged insane by the county court, and was then confined in the state insane asylum; that Patterson had been duly appointed and qualified as her guardian; and praying that a day be fixed for the hearing, and that the clerk give notice thereof by posting. Upon this petition, Bradford was appointed, thereafter qualified, gave notice to creditors, and administered the estate. The order for his appointment re ited that it was upon the petition of Bradford, as guardian of the children, but did not refer to Patterson as the guardian of Mrs. Blinn; that the applicant, Bradford, appeared in person and by his attorney, W. H. Patterson; found that the clerk had posted notices as required by law; that Mrs. Blinn was insane, and had been so adjudged, and revoked her appointment. The record is silent as to whether any citation or notice of these proceedings were served upon Mrs. Blinn, and, aside from the averment in the petition that Patterson had been appointed and qualified as her guardian, is also silent as to the fact that she had a guardian.

The insanity of Mrs. Blinn was at that time of short duration. After she was restored to sanity, she applied to the court for an allowance for her support, recognized Bradford as the administrator, consented to the allowance of his commissions, and participated in the final settlement and distribution of the estate. Her present incoinpetency occurred subsequently. Upon these facts, appellant contends that the probate court had no jurisdiction to revoke the letters granted to Mrs. Blinn; that she had never been suspended or removed from her office as administratrix; that the appointment of Bradford is void; that the estate of Sainuel P. Blinn has never been administered; and that, hence, the title to the property is, not such as he is bound to accept, under the conditions of his bid. It is conceded by respondent that the record does not affirmatively show either that Mr. Patterson ever qualified as the guardian of Mrs. Blinn, or that any citation was issued or served upon her to show cause why her letters of administration should not be revoked; but respondent contends that even if the proceedings for the appointment of Mr. Bradford as administrator were defective, by the acquiescence of Mrs. Blinn in the appointment after she was restored to sanity, and her participation in the final settlement and distribution of the estate, she is now estopped from questioning the validity thereof; the proceeding for the sale of the real estate here in question being a proceeding by her through her guardian, and for her benefit.

We think that the court had jurisdiction, and that the appointment of Mr. Bradford was regular. The proceedings resulting in the appointment of Mr. Bradford were had before the Code of Civil Procedure was enacted. Sections 5794 and 5795 of Hittel's General Laws (corresponding to sections

1425 and 1426 of the Code of Civil Procedure) are as follows: "5794. In case any one of several executors or administrators, to whom letters shall have been granted, shall die, become lunatic, be convicted of an infamous offense, or otherwise become incapable of executing the trust, or in case the letters testamentary, or of administration, shall be revoked, or annulled, according to law, with respect to any one executor or administrator, the remaining executor or administrator shall proceed and complete the execution of the will or administration. 5795. If all such executors or administrators shall die, or become incapable, or the authority of all of them shall be revoked, according to law, the probate court shall issue letters of administration with the will annexed, or otherwise, to the widow or next of kin, or others, in the same manner as is directed in relation to original letters of administration. The administrator so appointed shall give bond in the like penalty, with like sureties and conditions as hereinafter required of administrators, and shall have the like power and authority." These sections, it will be seen, do not prescribe the grounds upon which the authority of an administrator may be revoked, nor the mode in which the revocation may be accomplished. The twelfth chapter of the act, sections 5979 to 5984, (2 Hitt. Gen. Laws,) does that. Section 5979 is as follows: "Whenever the probate judge has reason to believe from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled, or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has committed, or is about to commit, a fraud upon the estate, or has been incompetent to act, or has permanently removed from the state, or who has wrongfully neglected the estate, or has long neglected to perform any act as such executor, or administrator, it shall be his duty, by an order entered upon the minutes of the court, to suspend the powers of such executor, or administrator, until the matter can be investigated." The sections following provide for the appointment of a special administrator during such suspension, if deemed necessary, and require the suspended administrator to be cited to appear and show cause why his letters should not be revoked. When considered together, these provisions do not seem difficult of construction. The power or jurisdiction of the court to appoint a new administrator may be exercised upon the happening of the death, insanity, or conviction of an infamous offense of the former administrator, or upon the revocation of his power and authority by the court. The insanity of Mrs. Blinn at the time of Bradford's appointment is not questioned, but only the proceedings resulting in his appointment. In case of the death, insanity, or conviction of the

former administrator, such death, insanity, or conviction must be judicially ascertained by the probate court before a new appointment can be made, but such fact may properly be ascertained by the court in a proceeding under a petition for the appointment of a new administrator. In case of the death of the former administrator the fact is properly presented to the court in a petition for the appointment of a new administrator, and upon the hearing the fact may be established by witnesses. In case of the conviction of the former administrator of an infamous offense, the fact may be presented in the same manner, and proved upon the hearing by the production of the record of his conviction. No citation to the convict is necessary, as it is the fact of the conviction, when shown to the court by proper allegation and evidence, which authorizes the court to make the new appointment. The convict is not a necessary party to the proceeding. He has had his day in court, and is conclusively bound by the record. No one would contend for a moment that it is necessary in the probate proceeding for the appointment of a new administrator to again charge him with the offense, and try him upon that charge before a jury, and have a verdict of guilty in the probate court. So, in the case of insanity, not only the insane person, but all who deal with him, are bound by the record of the court of competent jurisdiction adjudging him insane, unless they can show that after the adjudication, and before the transaction in question, he had been restored to sanity. No such restoration is claimed in this case. Hence the proper mode of presenting the fact of Mrs. Blinn's insanity was pursued. It was properly alleged in a petition for the appointment of Mr. Bradford as administrator, and the record of the county court adjudging her insane was competent and sufficient proof of the fact, and that was the only fact to be ascertained to authorize the court to proceed to the appointment of a new administrator. Upon the question of her sanity, Mrs. Blinn had had her day in court. She was bound by that adjudication. If she had not been adjudged insane prior to the proceeding for Mr. Bradford's appointment, it would have been necessary to have brought her regularly before the court as a party to the proceeding, since she must have been presumed to be sane, and entitled to a hearing upon that question.

Appellant contends, however, that the statute required that she should be cited; that the word "incapable," used in sections 5794 and 5795, and the word "incompetent," used in section 5979, are synonymous; that under the latter section the person "incompetent to act" must be cited to show cause before his authority can be revoked. The legislature has classified death, insanity, and conviction of an infamous offense under the

designation "incapable," and other matters affecting the integrity or qualification for the discharge of the duties of an administrator as "incompetency." The embezzler, the thief, the man who hesitates at no fraudulent scheme to despoil an estate, or who is so careless and indifferent as to habitually and grossly neglect his duties, may have capacity to properly discharge all the duties of an administrator, but the man who is dead or insane. or civiliter mortuus is "incapable." Whether the word "incompetent" was wisely chosen or not, the context leaves no room to doubt the sense in which it was used, and that it was used to designate a different class from those characterized as "incapable." Nor is this view inconsistent with Schroeder v. Superior Court, 70 Cal. 344, 11 Pac. Rep. 651, cited by appellant. There it was held that the provision of the Code of Civil Procedure, that, by the marriage of an administratrix, "her authority is extinguished," is the equivalent of, "she ceases to be competent." In such case the mental and physical capacity of the administratrix is not affected by the marriage, but the statute extinguishes her authority. It is true the court there held that she "may be proceeded against for suspension and removal under section 1436, Code Civil Proc., and the sections immediately following;" but the closing sentence of the opinion shows that the proceeding "for suspension and removal" is referred to as a convenient and orderly one for ascertaining the fact of the marriage where doubt existed. If we clearly distinguish between the direct legal effect of the death, insanity, marriage, or conviction of crime upon the authority of the administrator, and the finding of these facts as necessary to the exercise of the jurisdiction of the court to appoint a successor, all difficulty is removed. Appellant also cites Estate of Moore, 68 Cal. 281, 9 Pac. Rep. 164. In that case, Thomas W. Moore, the administrator, was adjudged insane by a competent court, and sent to an asylum. About a year later he was discharged from the asylum, and under a direct proceeding under section 1766, Code Civil Proc., he was found and adjudged to be of sound mind. Afterwards, the widow of intestate filed her petition in the probate court, alleging, among other things, that Thomas W. Moore had been adjudged insane, and since that time no order had been made, appointing any one as administrator, and asking that she be appointed. It was held that an entire or absolute vacancy was not created when respondent, Thomas W. Moore, was sent to the asylum; that he became incapable of executing the trust for the time being, and if, during that time, she had applied for letters, they would doubtless have been granted, but having been restored to sanity, and recognized by the court and others as such administrator, the application came too late. It is not

necessary to determine, in the case at bar, whether insanity creates an absolute vacancy, or, if it does, whether it occurs prior to the judicial ascertainment of the fact by the probate court, for it is not questioned here that Mrs. Blinn was insane at the time Mr. Bradford was appointed, while the Case of Moore expresses the opinion that, if Mrs. Moore's application had been made while the insanity of the former administrator continued, letters would have been granted to her. There is therefore no conflict between that case and the opinions we have expressed in this. The probate court, having found that Mrs. Blinn was insane, and had been so adjudged by the county court, had jurisdiction to appoint Mr. Bradford, and no citation to Mrs. Blinn was necessary. She was entitled, as heir, to notice of the hearing, but that was given by posting the usual notice. The conclusion we have reached makes it unnecessary to consider the effect of her subsequent acquiescence in the appointment and proceedings of Mr. Bradford as administrator, and also renders immaterial the question whether Mr. Patterson in fact qualified as her guardian. The judgment or order confirming said sale to appellant, from which this appeal is taken, should be af firmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment or order confirming said sale to appellant is hereby affirmed.

(99 Cal. 286)

PEOPLE v. BEEVERS. (No. 20,975.) (Supreme Court of California. Aug. 15, 1893.)

BIGAMY-VALIDITY OF MARRIAGE.

1. Under Civil Code, § 82, declaring that the marriage of one below the age of consent can only be annulled by that party, and that, if he or she freely cohabit with the other after attaining the age of consent, the marriage is valid, one who has married a girl below the age of consent cannot, after remarrying, plead that fact to the charge of bigamy.

2. A marriage by consent, followed by "a mutual assumption of marital rights, duties, or obligations," as described in Civil Code, § 55, is as sufficient a basis for a prosecution for bigamy as one by consent, "followed by a solemnization."

3. In a prosecution for bigamy, on a defense that the first marriage was illegal, the judgment roll of a suit for divorce by the first wife against the accused, granted by the court, and pending on appeal in the supreme court, is incompetent evidence, and, if admitted, prejudicial.

Department 1. Appeal from superior court, Fresno county; S. A. Helmes, Judge. Prosecution of John A. Beevers for bigamy. Verdict of guilty, and judgment thereon. New trial denied. Defendant appeals. Reversed, and remanded for new trial.

Frank H. Short, for appellant. Atty. Gen. Hart, William H. Layson, First Dep. Atty. Gen., W. D. Tupper, and H. H. Welsh, for the People.

GAROUTTE, J. Appellant, Beevers, was convicted of bigamy, and now prosecutes an appeal to this court from the judgment and order denying his motion for a new trial. It is insisted that the evidence is insufficient to justify the verdict. Beevers, being of the age of 20 years, and Lou Jacobs, being of the age of 14 years, desirous of marrying, eloped from Hollister, San Benito county, and went to the town of Monterey for the purpose of being married upon the high seas, this course being adopted with a view to escape the difficulties to marriage presented by the girl's tender years. Upon their arrival at Monterey, the sea was boisterous, no boat could be procured, and the plan was abandoned. It was thereupon orally agreed between them that they should live together as husband and wife, and that, upon their return to the home of their parents, both should state the fact to be that they were married upon the sea. Thereafter they returned to Hollister, and to all their friends declared the fact in accordance with their previous agreement, and further stated that the certificate of marriage had been lost. These statements were repeated upon all occasions for many

months, and it was only a short time prior to the inception of this prosecution that the true facts were disclosed to the public. Immediately upon their return to Hollister they lived together as husband and wife, represented themselves as such at all times, were known to the neighborhood as married people, and conducted themselves as married people usually do. Their affairs were conducted upon these lines for nearly fcur years, during which time a child was born to them, but, differences having arisen, a separation ensued, and subsequently Beerers married one Clara Bates, and his prosecution and conviction upon a charge of bigamy were the result.

It is claimed that the foregoing evidence is insufficient to prove such a marriage be tween these parties as to form the basis for a charge of bigamy, and, as one of the grounds for such claim, it is insisted that the girl was but 14 years of age at the time the agreement of marriage was entered into, and, consequently, was incapable of giving consent thereto, the statute fixing the capacity of females for consert at the age of 15 years. Appellant's contention cannot be sustained. Section 82 of the Civil Code declares that the marriage can only be annulled by the party who did not possess the capacity to consent, and expressly recognizes the validity of the marriage if, after attaining the age of consent, such party freely cohabits with the other as husband or wife. In Shafher v. State, 20 Ohio, 1, it is held