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the matter of instructing the jury. Of the considered. The judgment and order apinstructions asked by the defendant and re- pealed from are affirmed. fused, those which were correct were given in other parts of the charge.

We concur: GAROUTTE, J.; PATERSON, 6. There are a great many exceptions in J.; HARRISON, J.; FITZGERALD, J.; DE the record to the rulings of the court upon HAVEN, J. the admissibility of evidence, but we see no material error committed by the court in such rulings. 7. The most serious point made by appel

HOVEY V. WALBANK et al. (No. 18,187.) lant is that during the progress of the trial (Supreme Court of California. Oct. 28, 1893. the court unnecessarily and unjustly censur- WILLS--CONSTRUCTION-Rights OF LEGATEES. ed the attorney of appellant, and applied to

Under a will giving to testator's wife all his conduct of the case improper adverse

his property to expend as she may see fit, with criticism, and thus prejudiced the jury

full power to dispose of any or all of it as sbe against the attorney, and therefore against all interest which testator might have in his

may deem proper, and with power to contey appellant. This contention has certainly property at his death, a provision directing that, cme plausible reasons for its support, but

after the death of the wife, certain legacies be after a full consideration of the whole mat

paid from any money remaining to testa tor's

estate, gives the legatees named no rights in ter we do not think that what passed from

the property as against grantees of the teststhe court to appellant's counsel was of suffi- tor's wife. cient impropriety or importance to warrant

Department 2. Appeal from superior us in setting aside the verdict. The great difficulty with an appellate court in deter

court, Siskiyou county; J. S. Beard, Judge.

Action by Frank Hovey, as administrator mining such a question is to learn from a

with the will annexed of the estate of Charles dry, printed transcript the true character and quality of the thing complained of. It is

Breton, deceased, against Edward M. Walnot photographed before us, and we cannot

bank and another, to recover property which know the tone, the emphasis, the expression,

had belonged to testator's estate Judgment or the manner with which the thing was said

for defendants. Plaintiff appeals. Affirmed. or done. The language complained of related L. F. Coburn, for appellant. Gills & mainly to what the court considered an un- Tapscott, for respondents. necessary consumption of time by appellant's counsel in examining and cross-exam- McFARLAND, J. Charles Breton died on ining witnesses, making objections, etc. The the 4th of August, 1890, leaving a will of court, no doubt, might have confined counsel which the following are the material parts within proper limits of time in conducting necessary to be here considered: “First I the defense by the use of less barsh lan- direct that all my just debts, the expenses of guage; but that nice mingling of the fortiter my last sickness, and my funeral expenses in re and the suaviter in modo which would be paid from the first money that sball enable a presiding judge to always keep in come to the hands of my executrix hereinhand the orderly conduct of a trial without after named. Secondly. I will, bequeath, an occasional jerk is not to be often expect- and devise to my beloved wife, Bertha Bre ed. Counsel for appellant seems to have ton, all of the remainder of my property, been entirely respectful in his manner to the real, personal, and mixed, and wherever the court, but his repetition of questions, many of same may be situated, to have, use, and which were pointless, was a useless waste expend as she may see fit during her life of time. Some of the witnesses for the peo time, with full power to sell, transfer, or ple had been examined on a previous trial dispose of the whole or any portion therpol. of another person for the same offense, and as she may deem proper, hereby granting. upon a preliminary examination before a giving, and devising to her full power to conmagistrate, and counsel for appellant asked vey a fee-simple title to any of the real es them a great many questions about what tate which I may own at the time of my they had testified on those former occasions. death, and to convey all the right, title, and This was proper, of course, if there had been interest which I may have at the time of my an apparent intent to show a difference be- death, of, in, and to all the property which tween their former and their present testi- may be hereby willed, bequeathed, and de mony; but most of the questions were wheth- vised to her. After the death of my suid er or not they had said things on the former wife, I direct that from any money remainoccasions which were exactly the same things ing to my estate the following named les to which they had just then presently testi- acies be paid.” Then follow several lezfied. All this was no doubt trying to the acies to different persons; and by the will patience of the court; and, while some of the his said wife, Bertha Breton, was made er. language used by the court to counsel is not ecutrix without bonds. The widow, the said at all to be commended, we do not think Bertha Breton, qualified as executrix, and that, considering the whole case, the appel- such proceedings in the administration of the lant was prejudiced or injured thereby. estate were duly had that on October 31 There are no other points necessary to be 1891, a final decree of distribution of the

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estate of Charles Breton, deceased, was reg. fact that such a phrase as “lifetime" mas ularly entered in the superior court in which also have been used. In Ramsdell v. Ranssaid administration was pending, distributing dell, 21 Me. 288, the court say: "If estates said estate in the words of said will; and be devised to a person with or without on November 7, 1891, a further decree was words of inheritance, and with an absolute entered discharging the said Bertha Breton right to sell and appropriate the proceeds from all further liability as executrix, and at pleasure to his own use, it is not peradjudging that the estate was "fully distrib- ceived how there can be a vested interest uted and the trust settled and closed." The imparted to another in the same estate or said Bertha Breton took possession of all property. Such full dominion in the devisee the property under said decree of distribu- or legatee is inconsistent with and detion; and afterwards, on February 21, 1892, structive of all other rights." But, however she made, executed, acknowledged, and de- that may be, it is certainly true that where, livered to the defendants, Edward M. Wal- in such a case, the devisee has actually bank and William Bisbee, an instrument in disposed of all the property, there cannot writing, by which she conveyed and trans- afterwards be “a vested interest imparted ferred to said defendants all the property to another" therein. In none of the cases mentioned in said decree of distribution, and cited by appellant was the language of the in said will remaining undisposed of by her will the same as that used in the will here at that tiine; and the said defendants there

in question. In the present case the devisee upon immediately took possession of all of was not confined by the words of the will said property. This instrument provided

to the mere use of the property during her that the defendants should execute certain life. She was not limited merely to such trusts therein expressly declared. After- disposition or such change of form of the wards the said Bertha Breton died, and the

property as would enable her to better enjoy plaintiff herein, who was public administra- it. It was given to her to "expend as she tor, procured himself to be appointed ad- may see fit," and "with full power to sell, ministrator with the will annexed of the

transfer, or dispose of the whole, or any estate of said Charles Breton, deceased. As portion thereof, as she may deem proper;" such administrator he commenced this action and she was given "full power to convey a against said defendants, Walbank and Bis- | fee-simple title to any of the real estate," bee, to recover possession of all the property and “to convey all the right, title, and inin their hands which had belonged to silid terest which I may have at the time of my Charles Breton, deceased, at the time of his death, of, in, and to all the property" mendeath. The defendants answered, claiining tioned in the will. It is admitted that by ownership of said property under said con- the said instrument in writing, executed and veyance from said Bertha Breton. At the delivered to the defendants, she did in extrial-the evidence and admissions of the

press terms convey, transfer, and dispose of parties having shown substantially the all of said property to said defendants, and, above facts-the court granted a nonsit, having done so, there was not "any money and entered judgment for the defendants. remaining” to which the subsequent legacies From the judgment, plaintiff appeals.

named in the will could attach. The judgRespondents contend, in the first place, ment and orders appealed from are affirmed. that the judgment should be affirmed without reference to the construction of the will, We concur: FITZGERALD, J.; DE HAbecause it appears that the estate of Charles VEN, J. Breton was fully and finally distributed, and the administration closed; that there was nothing further to be administered on in said estate, and that, if those who claim to

CRAWFORD V. MADDUX et al. (No. be legatees under the will after the death of

18,140.) Bertha Breton have any rights in the prein

(Supreme Court of California. Nov. 6, 1893.) ises, such rights could be asserted only in INSOLVENCY INSOLVENT Estate Money Reactions brought directly by said legatees

CEIVED BY CREDITOR-ACTION BY ASSIGNEE FOR

EMBEZZLEMENT-CREDITOR AS TRUSTEE. against the defendants We are disposed

1. Money received by a creditor of an into think that respondents are right in this solvent in consideration of not bidding at a jucontention, but we do not deem it necessary

dicial sale of insolvent's property cannot be re to definitely determine this point, because,

covered by the assignee in insolvency in an

action for its embezzlement as part of the inin our opinion, said legatees, under the facts,

solvent estate, under Insolvent Act 1880, $ 23. took no interest in any of said property. It 2. The fact that a creditor delayed the ap is not necessary to determine accurately and pointment of an assignee until the remedy by to a nicety into what category of estates the

vacating the sale became inadequate could not interest which Bertha Breton took under

give rise to such action, since it could not have

been maintained if the assignee had been apthe will should be placed.

Under some au- pointed without delay. thorities such an absolute power of dis- 3. The creditor who received money froin position of property as this will contains

the purchaser at the sale for not bidding did Is held to substantially and necessarily cre

not become a trustee of the money for in

solvent's creditors, as the money did not be ate an estate in fee, notwithstanding the long to the insolvent or his estate.

Commissioners' decision. Department 2. The court further found that the value of Appeal from superior court, Stanislaus coun- the store was $900; that the constable wbo ty; William 0. Minor, Judge.

made the sale had no knowledge of sald Action by E. R. Crawford, as assignee in agreement; that Husband and Turner had insolvency of W. W. Granger, against L. J. no knowledge that said $704 was not to be Maddux, the Jacob Unna Company, Red- paid to the assignee of Granger, and that dington & Co., Alfred Greenebaum & Co., Maddux was an innocent agent in the transWhittier, Fuller & Co., and Yates & Co. for action. Judgment was rendered against ap the embezzlement of money of the insolvent pellants for the sum of $1,408, with interest debtor. From a judgment for plaintiff, and from October 15, 1889, amounting to $213.54, an order denying a motion for a new trial, and costs of suit. This appeal is from said defendants appeal. Reversed.

judgment and an order denying defendants'

motion for a new trial. Chickering, Thomas & Gregory, Joseph Kirk, and L. J. Maddux, (Warren Olney, of

The action is based upon section 23 of the

insolvent act of 1880, which is as follows: counsel,) for appellants. Dennett & Need ham, for respondent.

If any person, before the assignment is

made, having notice of the commencement HAYNES, C. On September 26, 1889, one of proceedings in insolvency, embezzles or Goldzier obtained a judgment in a justice's disposes of any of the moneys, goods, chatcourt against Granger, the owner of a drug tels or effects of the insolvent, he is charge store. An execution was issued thereon, and able therewith, and liable to an action by on October 15, 1889, the goods were sold by the assignee for double the value of the the constable under the execution of J. W. property so embezzled or disposed of, to be Husband and G. S. Turner for $196, the recovered for the benefit of the estate." By amount of said judgment and costs. On Oc- section 61 of the same act the filing of a tober 1, 1889, the Jacob Unna Company, petition by or against the debtor is declared Reddington & Co., Alfred Greenebaum & to be the commencement of proceedings in Co., Whittier, Fuller & Co., and Yates & Co., ) insolvency under the act. (appellants here,) creditors of Granger, filed The judgment against appellants is based a petition in the superior court praying that upon the theory that the property sold by Granger be adjudged an insolvent debtor. the constable was of the value of $900; that The record does not disclose at what time Husband and Turner were willing to pay the order to show cause was made returna

that amount for it; that the agreement be ble, nor when it was served upon Granger,

tween them and Bonnell, as the agent of but on December 7, 1889, he was adjudged appellants, prevented competition; that the an insolvent debtor, and on August 15, 1890, money paid to appellants after the sale was Crawford, the plaintiff in this action, was the money of the insolvent's estate, and that elected assignee.

Its appropriation by them was an embezzleIt was further alleged in the complaint, ment of the money of Granger, against and the court found, that one A. C. Bonnell whom proceedings in insolvency bad been was the agent of the appellants, and as such commenced, agent agreed with Husband and Turner, It is apparent that, if the money so paid who desired to purchase the store at said by Husband and Turner was not the money execution sale, that he would not bid at of Granger, the judgment is wrong.. Ap such sale in consideration that they, said | pellants have not at any time had possesHusband and Turner, would pay appellants sion or control of the goods under execution. the sum of $704; that Husband and Turner The agreement in question was against pubhad represented to Bonnell that they were lic policy, and wholly void. If Husband willing to pay $900 for the store; “that and Turner had refused to pay the money, thereafter the said Husband and Turner did Bonnell could not have compelled payment; bid in the said store and stock thereof for or if, after payment, the sale had been set the sum of $196, and the said Bonnell did aside because of the agreement, Husband refrain from bidding at said execution sale," and Turner could not have compelled Bonand that thereafter Husband and Turner nell or his principals to repay it. Packard paid to defendant Maddux said sum of $704; v. Bird, 40 Cal. 378; Freem. Ex'ns, { 297, that Maddux transferred the money to the and cases there cited. The payment was, Board of Trade of San Francisco, who paid therefore, voluntary, and the agreement was the same to defendants, the said petitioning made by Husband and Turner for their real creditors, and that they "received the said or supposed personal advantage. The findsum of $704, belonging to the insolvent es- ing of the court that they did not know that tate of said W. W. Granger, before the as- the money was not to go to the creditors of signment therein, and, having notice of the Granger does not in any way affect the quescommencement of the proceedings in insol. tion. The illegality and wrong of the agtet vency, converted and appropriated the same ment was the prevention of competition at to their own use, and refused to deliver the the sale, and that illegality and wrong would same when demanded by the assignee of the have been equally great and equally capable said insolvent estate, the plaintiff herein." of redress by setting aside the sale if the

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consideration had been but five dollars, or These considerations necessarily dispose of if the absence of competition had been pro- other questions presented by appellants. I cured by false representations or fraudulent think the judgment and order appealed from devices, without the payment of any money.

should be reversed. The amount paid cannot, therefore, because of the wrong, become the property of the We concur: TEMPLE, C.; BELCHER, C. execution debtor, nor create a demand in his favor for the amount so paid, nor even

PER CURIAM. For the reasons given in be the measure of damages, if an action of the foregoing opinion the judgment and orthat character would lie.

der appealed from are reversed. The action here, bowever, is not for damages for any fraud practiced by appellants, but for the embezzlement of $704 of the money, property, and effects of the insolvent HOGINS V. BOGGS. (No. 18,155.) debtor; and the material question is whether (Supreme Court of California. Nov. 7, 1893.) that money was the money of the insolvent's

Deep-DESCRIPTION-DISTANCES. estate. It will bardly be contended that, if

Under a deed purporting to convey a the agreement had been to give appellants certain number of feet alon a street commena pair of horses, or to convey to them a cer

cing at a certain point, only that number of

feet passed by the deed, and therefore evidence tain parcel of land, and the horses had been

that the grantor, in measuring off the land delivered or the land conveyed in fulfillment granted, measured more than that number of : of the agreement, the plaintiff could have re- feet, is incompetent to show that more than plevied the horses as the property of the

the number of feet stated passed by the deed. estate, or com pelled a conveyance of the title Commissioners' decision. Department 2. to the land, for the plain reason that neither Appeal from superior court, Placer county; Granger, before the adjudication of insol. W. H. Grant, Judge. vency, nor his estate afterwards, was the Action by Catherine Hogins against J. C. owner of the property sought to be replevied | Boggs. Judgment for plaintiff. Defendant or recovered; and, if not, an appropriation appeals. Reversed. of the horses or the land to the use of ap- Hale & Craig, John M. Fulweiler, and Ben pellants could not be an embezzlement.

P. Tabor, for appellant. Wallace & Wallace, Counsel for respondent do not cite us to for respondent. : any case where it has been held that money

or property received by one in consideration TEMPLE, C. Action to quiet title to land of not bidding at a judicial sale may be in Newcastle, in the county of Placer. The recovered in an action by the judgment debt. controversy is in regard to the boundaries. or or bis assignee, nor has any such decision The plaintiff had judgment, and the defendtallen under our notice; and, if an action ant appeals from the judgment and an orcould not be maintained for the recovery of der refusing a new trial. the sum so received, it must be clear that an The parties own and occupy contiguous action for its embezzlement will not lie. places on Depot street, and both derive title Respondent's argument that the failure of

from H. F. Albee. It is agreed that A. N. appellants, the petitioning creditors, to pay Page formerly owned a larger tract of land, the costs in the insolvency proceeding, of which the premises now claimed by both whereby the appointment of the assignee parties constituted a portion. September 9, was greatly delayed, and that the remedy 1875, Page conveyed to Mrs. H. F. Albee a by vacating the sale was thereby rendered tract fronting on Depot street 100 feet, and inadequate, is, therefore, without force, be- extending 150 feet back. The lots of the cause it could not operate to give a cause of parties and the strip in dispute extend 200 action for embezzlement where that action feet back from Depot street. The tract concould not have been maintained if the as- veyed to Mrs. Albee extends along Depot signee had been appointed without delay. street 100 feet northerly from the Good

Respondent also contends that appellants, Templars' lot. The strip in dispute is 6 feet who were petitioning creditors, were trus- wide, and the southerly line of it is just 50 tees for the creditors, and that the judgment feet 9 inches north from the Good Templars' should be sustained upon that ground. The lot. The deed to Mrs. Albee was a bargain execution was levied upon the store before and sale deed, and Mrs. Albee testified that the petition was filed, and the sale under she paid $50 for the land. There was no that execution could not have been prevent- evidence tending to show that the money ed. They were in no way instrumental in paid was her separate property. The land procuring the sale. Their only connection then was the community property of Albee with it was through the agreement made by and wife. November 19, 1877, Page conBondell, and, as the money paid by the exe- veyed to H. F. Albee a tract on the north of cution purchasers under that agreement was the lot conveyed to Mrs. Albee, fronting 20 not the money of Granger or his creditors, feet on Depot street. This vested in Albee, no trust was created in appellants in rela- or in Albee and wife, as community property, tion thereto.

& frontage of 120 feet on Depot street.

Another conveyance was made by Page to the land. For this purpose it might have Albeo and Hogins of a tract including the been shown wbere H. H. Smith's lot was, land theretofore conveyed to the Albees and that it was the same property afterwards other lands. This conveyance was intended, known as the “Madden" or "Good Templars*** as Albee testified, to take in odds and ends. lot, and where Depot street was. These The land described in this deed was con- facts appearing, there were no others which veyed to Albee by Hogins. November 17, could have thrown light upon the matter. 1880, Albee conveyed to Hogins a tract of I think the judgment and order should be laud described as follows: "Commencing at reversed, and a new trial had. the northwest corner of the Good Templars' Hall Association lot on Depot street, and We concur: VANCLIEF, C.; BELCHER, rur.ning along said Depot street, about north- C. West, about fifty feet; thence nearly westerly about one hundred and fifty feet, more or PER CURIAM. For the reasons given in less, to Page's line; thence fifty feet in a the foregoing opinion, the judgment and arsoutherly direction; and thence one hundred der are reversed, and a new trial ordered. and fifty feet, more or less, to the place of beginning." February 23, 1883, Albee conveyed to defendant Boggs a tract of land de scribed as follows: "Commencing on Depot RAKER v. BUCHER, Sheriff. (No. 18,015.street in said town of Newcastle, at the

(Supreme Court of California. Nov. 6, 1833.) northeast corner of A. N. Page's lot; thence

SHERIFFS AND CONSTABLES-DUTIES — FALSE RE. westerly, along the south line of said Page's

TURN-SUFFICIENCY OF Evidence- PLEADINGlot, a distance of 90 feet; thence south, 20 ANSWER—CORRECTION OF CLERICAL ERROR feet; thence west, 60 feet, more or less; 1. Plaintiff's motion for judgment because thence south, 50 feet; thence east, a dis

the answer is evasive is properly denied, where tance of 150 feet, more or less, to said Depot plaintiff's objection to the answer may be over street; thence north along said Depot street,

come by the correction of an evident clerical

error which the context shows to be the use of 70 feet, to the place of beginning,—together “when" for "where." with the dwelling house thereon, heretofore

2. In an action against a sheriff for the known as the residence of the party of the

penalty for selling property without notice,

where the truth of the sheriff's return was in first part." In none of the deeds from Page,

issue, undisputed evidence that the sheriff bad under which Albee claimed, were any land- admitted its falsity was sufficient to overcome marks called for except Abbot's lot, Mad

the prima facie effect which the law attached den's lot, and' Depot street. North of Mad

to such return. den's lot, no landmark was called for except Department 2. Appeal from superior court, Depot street. The distances are therefore Modoc county; G. G. Clough, Judge. controlling. There was nothing to do, then, Action by Raker against Bucher, as sherbut to find the starting point, and measure iff, for statutory penalty for failure to give northerly along the line of Depot street. the required notice of an execution sale, and There was no chance, under such circum- | for damages. Judgment for defendant stances, for surplus land. It does not ap- Plaintiff appeals. Reversed. pear that any landmarks were set after the deeds were made which were agreed upon

Spencer & Raker and Clarence A. Raker, by the parties. The land was not immedi

for appellant. D. W. Jenks, for respondent ately inclosed. In 1878 a fence was built in front of the property, and according to that,

DE HAVEN, J. The defendant, as sheras I understand the testimony, there was a

iff, sold certain real property owned by plainsurplus of 784 inches only. Still, a witness,

tiff under an execution issued upon a judg. Elmer Albee, was allowed to testify, against

ment recovered against him. The complaint the objection of defendant, that he assisted

in this action, which is verified, alleges that Mr. Page in measuring the 100 feet con

this sale was made by defendant without veyed to Mrs. Albee, and that, "as nigh" as

giving the notice required by section 692 of he could guess, it was 5 or 6 feet over. the Code of Civil Procedure, and the plaintiff The only purpose of this testimony was to demands a judgment against the defendant show that more than 100 feet passed by the

for the statutory penalty of $500 given by deed to Mrs. Albee. It was clearly incom- section 693 of the Code of Civil Procedure petent for that purpose. If they measured against an officer for selling property with 6 feet over the 100 feet, that did not pass out legal notice, and also for the actual damtitle to anything more than was described in ages alleged to have been sustained by him the deed. Mrs. Hogins claims as heir to by reason of such wrongful sale. The de Daniel Hogins, and under a deed from Albee fendant answered, and the action was tried dated June 23, 1890. Apparently, at that without a jury, the court finding, in subtime, Albee had no land to convey, and it is stance, that the defendant gave the notice likely the conclusion of the court was based required by law before making the sale comupon the testimony of Elmer Albee as to the plained of, and judgment was thereupon eusurplus six feet. Oral evidence would have tered in favor of defendant

Plaintiff ap been competent to apply the description to peals.

* Rehearing denied. See 34 Pac. Rep. S19.

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