ten and signed by said Donohue, was the same executed by him under duress? (5) If said document was written and signed by said Donohue, was the same executed by him through menace? (6) If said document was written and signed by said Donohue, was the same executed by him through fraud? (7) If said document was written and signed by said Donohue, was the same executed by him through undue influence? (8) Was said document executed by said Donohue as and for his last will? (9) Did Patrick Donohue intend this paper as his last will and testament? (10) Is this paper the last will and testament of said Patrick Donohue? To the first, second, third, eighth, ninth, and tenth questions thus submitted, the jurors by their verdict answered, 'Yes,' and to the fourth, fifth, sixth, and seventh questions they answered, 'No.' The court adopted the findings of the jury, and, in accordance therewith, further found that the said document is the last will and testament of Patrick Donohue, deceased; that it was executed in all particulars as required by law; and that said testator, at the time of the execution of the same, was of sound and disposing mind, and not acting under undue influence, menace, fraud, or duress.' And thereupon an order was made and entered, admitting the proposed will to probate, and appointing the petitioner administratrix of the estate of the decedent, with the will annexed. From this order, and an order denying their motion for a new trial, the contestants appeal.

"An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state and need not be witnessed.' Civil Code,

1277. And such a will may be proved in the same manner that other private writings are proved. Code Civil Proc. § 1309. A will may be informally drawn, and may consist of one or more papers. No particular words are necessary to show a testamentary intent. It must appear only that the maker intended by it to dispose of property after his death, and parol evidence as to the attending circumstances is admissible. And courts, in reading wills, always supply obviously omitted words, wherever the word omitted is apparent, and no other word will supply the defect. Estate of Wood, 36 Cal. 75; Clarke v. Ransom, 50 Cal. 595; Estate of Skerrett, 67 Cal. 585, 8 Pac. Rep. 181; 6 Lawson, Rights, Rem. & Pr. § 3140; Redf. Wills, pt. 1, p. 454. Counsel for respondent contend that the document in question here was intended by decedent as a testamentary disposition of his property, and that it was sufficient in form to meet the requirements of the law, and to justify its admission to probate as a will. As they read the paper, it is as follows: 'Corral de Piedra, February 3, 1892. This is to certify that I leave to my wife (my) real and personal (property,) and

she to dispose of them as she wishes. Patrick Donohue.' Counsel for appellants, on the other hand, contend that the document was not entitled to probate as a will, because it is vague and uncertain as to the subjectmatter, presenting a case of patent ambiguity which renders it absolutely void. This contention is rested upon the theory that it cannot be determined from the face of the paper whether the word levet' should be read as 'leave' or 'left,' nor what real or personal property is referred to, and, therefore, that the construction given to the paper by respondent is unauthorized. We are unable to see any such patent ambiguity in the language used as would render the paper void on its face. The court below evidently read the word 'levet' as 'leave,' and supplied the word 'my' before and 'property' after the words 'real and personal;' and in our opinion it was justified in doing so. As thus read, the paper shows a testamentary intent, which entitled it to probate.

"Counsel for appellants also contend that the court below committed numerous errors in the admission and exclusion of evidence. All of these alleged errors may be considered together, and a brief statement of the facts proved, and sought to be proved, will be sufficient: The decedent. and respondent were married in 1869. They never had any childrea. Early in 1870, they went to San Luis Obispo county, and thereafter continued to live in that county. At the time of their marriage, she had about twenty-two or twenty-three hundred dollars in money, but he had no money or property. In May, 1870, they commenced working for wages; he doing farm work, and she household work, and coutinued in such employment until October, 1875, receiving most of the time $75 per

month for their services. About the time they thus commenced working out, they loaned to their employers $1,900 of her money at 14 per cent. per month interest. This money, and their accumulated earnings, they subsequently invested in land, which they afterwards sold for about twice the sum it had cost them. In January, 1875, they purchased another tract, a part of the Rancho Corral de Piedra, containing 157.79 acres. Both of them were named in the deed as grantees, and the consideration expressed therein was $8,100. In December, 1877, he conveyed to her 57.79 acres of this tract, and the consideration expressed in his deed was $2,000. He also at some time gave her a bill of sale of one horse. In 1881, and again in 1888, they purchased a few acres of adjoining land; and the parcels thus purchased in 1875, 1881, and 1888 were owned by them, and constituted their home, at the time of his death. Seven or eight years before his death, he made a will, but it had been lost or destroyed. By that will, he devised all his property to his wife during her life, and after that it was to go to his other heirs. A few days before he wrote

den of proving that the paper was intended by the decedent as his will was upon the proponent. These instructions, with others that followed, presented the contestants' theory as to the case very clearly and fully, and they were therefore, in our opinion, in no way harmed by the action of the court complained of.

"In giving the instructions of its own mo tion, the court called attention to each of the special issues submitted, and, among other things, said: "The next question is, was said document executed by said Donohue as and for his last will? The only testimony that the court recalls upon that -although you, gentlemen, have all the testimony before you-was the testimony of Mrs. Donohue that he wrote it; he wrote it and signed; and he told her it was his will, and gave it to her. But, of course, you are the sole judges of fact; of the evidence, and the credibility of witnesses. If you believe that evidence, you should answer, "Yes." If you do not, you should answer, "No."

It

is objected that this portion of the instruction was erroneous because it practically withdrew from the consideration of the jury all of the evidence introduced by contestants for the purpose of showing that the paper was not executed as a will. We do not think the instruction was intended to have the effect charged, and, in view of the other instructions given, it seems impossible that it could have done so. As we read it, it simply calls attention to the only direct evidence as to the making of the paper, and tells the jury, if they believe that evidence to be true, they will answer, 'Yes;' otherwise, 'No.' All the evidence was submitted to them, and, in view of it, they were to determine whether Mrs. Donohue's testimony as to the execution of the paper was true or not. The above disposes of the whole case, and it follows that the judgment and orders appealed from should be affirmed.

"We concur: SEARLS, C.; VANCLIEF, C. "PER CURIAM. For the reasons given in the foregoing opinion, the judgment and orders appealed from are affirmed."

William Shipsey, for appellants. Wilcoxon & Bouldin and J. M. Wilcoxon, for respondent.

lowed by the court, and those given by the court of its own motion," but does not contain those given by the court of its own motion, or requested by the people, the appellate court will not determine whether or not the trial court erred in refusing to give an instruction asked by defendant, but will set aside a submission of the cause, and restore it to the calendar, to be heard when all the instructions are incorporated into the record.

In bank. Appeal from superior court, Santa Cruz county; W. B. Cope, Judge.

Vital was convicted of murder, and ap peals. Submission of cause set aside, and cause restored to the calendar.

A. D. Splivalo and J. A. Spinetti, for appellant. Atty. Gen. Hart, for the People.

PER CURIAM. The minutes of the trial of this case, and which constitute a part of the record, state that the court read to the jury "instructions asked by the respective parties, and allowed by the court, and those given by the court on its own motion;" but the record filed here does not contain any of the instructions thus referred to, except those given upon request of the defendant. One of the points made by the appellant is that the court erred in omitting to instruct the jury that they had the discretion, in case they found the defendant guilty of murder in the first degree, to relieve him from the extreme penalty of death, and to say, by their verdict, that his punishment should be confinement in the state prison for life. We do not think we should determine this question upon the record now before us; at least, until an opportunity is given to the attorney general to supply the instructions given by the superior court upon its own motion and upon request of the people, if such instructions were actually given. It is the duty of a judge to properly indorse all instructions given on his own motion, and when so indorsed they form a part of the record on appeal. People v. January, 77 Cal. 179, 19 Pac. Rep. 258. The submission of this cause will be set aside, and the case restored to the calendar. The attorney general will be allowed 30 days within which to file a complete record, showing all instructions given and refused by the superior court. So ordered.

SISSON, CROCKER & CO. v. JOHNSON et al. (No. 18,102.) (Supreme Court of California. Oct. 6, 1893.) INJUNCTION-AGAINST TRESPASS-COMPLAINT. A complaint by a corporation operating a sawmill, which alleges that plaintiff, the owner in fee of certain land, commenced the construction of a logging road thereon to convey timber to the mill; that defendants entered on the land, and obstructed the men employed by plaintiff in continuing the work, threatening to use violence should they persist, whereby the work was stopped; that such interruption was repeated when an attempt was again made to construct the road, and that defendants threaten such interruption whenever

the work is attempted; that the road is necessary for the operation of the sawmill; and that defendants are insolvent, warrants the granting of a preliminary injunction.

Department 2. Appeal from superior court, Siskiyou county; J. S. Beard, Judge. Action by Sisson, Crocker & Co., a corporation, against F. M. Johnson and others, for an injunction. A preliminary injunction was granted, and, from an order denying a motion to dissolve the same, defendant Johnson appeals. Affirmed.

The complaint alleges that plaintiff is a corporation, and that it "was, on and before May 1, 1892, ever since has been, and now is, the owner in fee of" certain described land. It then alleges as follows: "That on or about May 15, 1892, said plaintiff herein commenced the construction of a logging road on the land herein above described, for the purpose of conveying the timber from said land to the sawmill of the said plaintiff, and that for said purpose said plaintiff employed a large number of men, to wit, about seven men, at a great expense, to wit, about twenty-five ($25) dollars; that on or about May 25, 1892, the said defendant herein entered upon the premises herein above described, and obstructed and prevented the men employed as aforesaid by said plaintiff for the purpose of building said logging road from continuing their work thereon; that said defendants did at said time threaten to use violence toward said men, if they, or any of them, persisted in constructing said logging road on said lands, and that the men so employed by said plaintiff as aforesaid were by said threats of said defendants frightened, and prevented from continuing their work on said logging road, and that the construction of said logging road was thereby wholly stopped; that said plaintiff caused said men to attempt, on several different occasions, to continue their work on said logging road after the first interruption by said defendants, and during said month of May, but that said defendants at each time prevented the continuance of said work, and threatened to do so, by violence, whenever said plaintiff or its employes shall attempt to construct said logging road; * that the plaintiff is now, and at all of the times since May 1, 1892, has been, the owner of, and engaged in operating, a sawmill near the town of Sisson, in Siskiyou county, Cal., and that the timber for the transportation of which the aforesaid logging road is being constructed is necessary for the successful operation of said sawmill, and that unless the said defendants are restrained, by the order of the court from preventing the construction of the aforesaid logging road, and the transportation of timber on the same to said mill, the said plaintiff will be compelled to either close said sawmill, or operate the same at a loss; that the continuance of the aforesaid acts of said defendants, as hereinbefore alleged, will cause said plaintiff great

1

and irreparable damage, and that defendants, as herein above stated, have heretofore and do now threaten to prevent the construction of said logging road by all means within their power; that the said defendants are, and each of them is, insolvent, and unable to respond in damages to plaintiff. Wherefore, said plaintiff prays that the said defendants, and each of them, their agents, employes, attorneys, and all persons claiming by, through, or under them, or either of them, be, by the order of this court, enjoined and restrained from in any way or manner interfering with the said logging road, or the proposed construction thereof on the land herein above described, and from interfering with the employes, and all of them, engaged at this time, or who may hereafter be engaged, in constructing said logging road, or any part thereof; also, from in any manner interfering with the land herein above de scribed, or the timber situated thereon, or the employes of plaintiff operating thereon, for plaintiffs' costs of suit herein, and for such other or further relief as to the court may seem proper."

Warren & Taylor, (T. M. Osmont, of counsel,) for appellant. Gillis & Tapscott and E. J. Emmons, for respondent.

STEPHENSON v. SOUTHERN PAC. CO. (No. 10,186.)

(Supreme Court of California. Oct. 10, 1893.) RAILROAD COMPANIES ACCIDENT AT CROSSINGPERSON JUMPING TO AVOID COLLISION-PLEADING INSTRUCTIONS.

1. The complaint in an action against a railroad company alleged that the driver of a horse car in which plaintiff was a passenger, on approaching a crossing of defendant's track, observed an engine standing on the track within 25 feet of the crossing, whereupon he stopped the car; that, after ascertaining that the engine was not in motion, he started to cross the track; that when he was very near it the engineer of defendant's engine negligently commenced to back it towards the car, whereupon the passengers, including plaintiff, observing that a collision was imminent, jumped from the car, and that in so doing plaintiff, though using due care, was injured. Held, that the complaint stated a cause of action.

2. An instruction that if defendant was guilty of negligence, as charged in the com plaint, and plaintiff was injured thereby, the verdict must be for plaintiff, is not erroneous in ignoring the question of contributory negli gence, when accompanied by several instruc tions making the right of recovery dependent on plaintiff's exercise of reasonable care.

Department 2. Appeal from superior court, Los Angeles county; W. H. Clark, Judge.

Action by Sallie D. Stephenson against the Southern Pacific Company. From a judgment for plaintiff, and order denying a new trial, defendant appeals. Affirmed.

John D. Bricknell. for appellant. Wells, Monroe & Lee, for respondent.

PER CURIAM. This action was brought to recover damages for personal injuries sustained by the plaintiff, who is respondent here, through the alleged negligence of defendant. Plaintiff had a verdict for $8,000, for which sum judgment was entered. The appeal is from the judgment, and from an order denying a new trial.

The Sixth street car line of the Los Angeles City Railway crosses the track of the Southern Pacific Company on San Fernando street in the city of Los Angeles, near the San Fernando depot, and extends to East Los Angeles. The plaintiff, on the 26th day of December, 1889, was a passenger bound from East Los Angeles on a car of the street-car line, the motive power of which was a horse. Some 60 feet easterly from the railroad crossing is a switch and side track of the streetcar line, upon which the car bearing plaintiff was run and stopped to allow an east-bound car of the Olive street line to pass. While so standing, a switch engine of defendant, propelled by steam, was observed on its track at or near the crossing, from which point it moved southerly some 50 feet south of the crossing, (probably to allow the eastbound Olive street car to pass,) where it stopped. The car containing plaintiff moved westerly to a point near the railway crossing, where it came to a full stop. The way being clear, it moved on. About simultaneously the switch engine of defendant rang its bell, and backed towards the crossing, which is diagonal to the course of the street railway. The driver of the street car whipped his horse across the track, and, as plaintiff testified, some one in the car called out, "All who want to save their lives jump," and, observing the approach of the engine, she jumped from the car, which was open at the sides. As she fell, her head struck the rail of the Olive street car line (which runs at this point nearly parallel with the track upon which plaintiff was a passenger) and received the injuries for which this action was brought. The switch engine was stopped some 15 or 20 feet before reaching the crossing. The street car had passed the crossing 5 feet when plaintiff jumped from it, the engine being still in motion. The fireman on the engine saw the street car, notified the engineer, and he stopped the engine. The servants of the defendant in charge of the engine did not wantonly and unnecessarily let the engine take steam and start it with intention thereby and for the purpose of frightening the street-car passengers.

The first point made by appellant relates to the sufficiency of the complaint, which, it is contended, does not state a cause of action. The second paragraph of the complaint, to which the attack is directed, averred that plaintiff was a passenger upon a certain street car, the line of which crossed the railway track, and had a right of way across the same; that the car driver, upon approaching the crossing, observed an engine. of defendant standing upon the railway track within a short distance of such crossing, whereupon the street car came to a full stop, and remained standing a short time; that the street-car driver then ascertained that the engine was not in motion, and started his horse to cross the railroad track; that "when very near to defendant's track, to wit, within fifteen feet, and about to cross the same, the engineer of the defendant's engine negligently and carelessly gave his engine steam, and commenced to back the said locomotive upon the track towards and upon the street car aforesaid, whereupon the passengers, including this plaintiff, observing the proximity of said engine, and that the same was rapidly approaching said street car in which they were riding, and that there was imminent danger of a collision with said locomotive, commenced to make their escape from said car by jumping off therefrom, with a view and for the purpose of escaping injury from said engine; and that plaintiff, being in imminent danger of injury by the anticipated collision, jumped from said street car, as did the other passengers." Then follow allegations to the effect that the street car was on the crossing and the engine within 10 feet of it, and moving, when she jumped; that the danger was imminent; that she used due care, etc., but fell and was injured. At common law it was not necessary in a declaration for negligence to set out the facts in detail constituting the basis of the action. The following was a usual form against the owner of a carriage for negligent driving: "For that defendant so negligently drove his horse and carriage that the same struck against the carriage and horse of the defendant, whereby," etc., followed by an allegation of damage. In adopting what is known as the "code system of pleading," courts in most of the states have excepted from the general rule, requiring a complaint to state the facts constituting the cause of action in ordinary and concise language, cases founded upon negligence; or, rather, they have so far modified the rule as to permit the plaintiff to state the negligence in general terms, without stating the facts constituting such negligence. This modification of a rule of code pleading is founded in wisdom, and grows out of a fundamental rule in common-law pleading, to the effect that "no greater particularity is required than the nature of the thing pleaded will conveniently admit," (Steph. Pl. *367;) supported by that other rule that "less particularity is required when the facts lie more