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Pac. 163. We think it may be further said | any other subject. Crediting jurors with the that this pecuniary loss may be either a loss usual measure of intelligence they certainarising from the deprivation of something to ly could not have been misled by a general which such heirs would have been legally statement absolutely unsupported by the reaentitled if the person had lived, or a loss sons she gave for having made it. arising from a deprivation of benefits which, from all the circumstances of the particular NOTE.-Justice SLOSS being disqualified, case it could be reasonably expected such

Justice MCLAUGHLIN, one of the justices of heirs would bave received from the deceased

the District Court of Appeal for the Third Ap

pellate District, participates herein pro tempore, had his life not been taken, although the pursuant to section 4, art. 6, of the Constitution. obligation resting on him to bestow such benefits on them may have a moral obligation

(149 Cal. 683) only. 8 Am. & Eng. Ency. of Law (2d Ed.)

In re DILLON'S ESTATE. (Sac. 1,478.) pp. 922, 939; 13 Cyc. p. 367; Redfield v. Oakland C. S. Ry. Co., 110 Cal. 288, 42 Pac.

DILLON v. CROSS. 822; 3 Suth. on Dam. (3d Ed.) § 1272, p. (Supreme Court of California. Sept. 17, 1906.) 3736; ibid. 8 1273, p. 3740.

EXECUTORS -- MANAGEMENT OF ESTATE - ExThe judgment and order are reversed, and PENSE ACCOUNTS-REVOCATION OF PROBATE

-Costs. the cause remanded for a new trial.

After the probate of a will and the ar

pointment of an executor, a petition was filed We concur: BEATTY, C. J.; MCFAR for the revocation thereof. While the issues LAND, J.; HENSHAW, J.; LORIGAN, J. were still unsettled, the court allowed, instead

of retaining for future determination, items of

expense in an account of the executor for the MCLAUGHLIN, J. I dissent. “All intend

services of experts in handwriting to determine ments of the law are in favor of the regular the validity of a second will. II eld, erroneous, ity of the judgment and proceedings in the

in view of Code Civ. Proc. $ 1332, providing court below, and it is incumbent upon the ap

that, where the probate of a will is revoked, the

costs must be paid by the party resisting the revpellants to show error affirmatively.” People ocation, or out of the estate, as the court div. Gibson, 106 Cal. 458, 39 Pac, 864; MC rects. Lennan v. Wilcox, 126 Cal. 53, 58 Pac. 305 ;

[Ed. Note.--For cases in point, see vol. 22,

Cent. Dig. Executors and Administrators, $$ People v. Allen, 144 Cal. 300, 77 Pac. 918.

451-453 ; vol. 49, Cent. Dig. Wills, &$ 891-894.] The objection to the question asked Mrs. Sneed was interposed after she had answered,

Department 2. Appeal from Superior and there is nothing in the record to show

Court, Nevada County; F. T. Nilon, Judge. that the court was requested to, or did,

Objections by P. F. Dillon to an aceount consider the objection as having been made

of C. W. Cross, executor of Patrick Dillon, at the proper time. True, this may have been

deceased. From an order allowing the acthe case, but it might with equal plausibility count, objector appeals. Reversed with direcbe assumed that the objection was

tions. ruled because it was tardily made. Under James G. Maguire and Thomas S. Ford, for the rule above quoted the latter view should appellant. P. F. Simonds, for respondent. be accepted as correct, and this done it certainly cannot be said that the ruling was LORIGAN, J. A document dated March erroneous. A motion to strike evidence from 8, 1904, purporting to be the last will and tes. the record must be based on a timely and

tament of Patrick Dillon, deceased, was duly sufficient objection to its introduction, and admitted to probate in the superior court hence there was no error in refusing to

of Nevada county and letters testamentary eliminate the testimony of Mrs. Sneed. If, issued to the respondent, C. W. Cross, named however, it be conceded that the evidence in the will as executor. Within a year therewas objectionable and the ruling improper, after another document, dated October 24, still I cannot persuade myself the error was 1904, which was claimed to be in fact the prejudicial. A mother may, perhaps, know last will of said deceased-olographic in charthat her son had no knowledge of electricity acter-was filed by appellant, P. F. Dillon, or its dangers, because he has never had an together with a petition by him praying for opportunity to acquire such knowledge either its admission to probate and that the probate by personal observation, reading. or inter of the prior will be revoked and the letters course with persons who could give him in testamentary which were issued thereon to formation on the subject. If his life has been said C. W. Cross be canceled and set aside. spent at a place so isolated that she must In his answer to this petition said C. W. know of his every act, she would be in Cross, as executor, set up that the alleged a position to say that he had no knowledge document filed by the appellant, Dillon, was of something he had never seen, and could not a false, fictitious, and forged instrument. have heard or read about. The answer of Thereafter by amendment to his petition for Mrs. Sneed was of a very general character, revocation of the original probate, and the and upon cross-examination it was demon admission to probate of what he claimed to strated beyond question that she could not be the later will, the appellant, Dillon, filed have nwn, and did not know, anything a contest against the validity of the prior about her son's knowledge touching this or will, urging as ground therefor that its exe

('ution had been procured through the undue sonable belief that the attack on the original Influence of C. W. Cross, the executor named probate was unjustified. Certainly the court therein. The respondent, Cross, demurred upon the settlement of an account, which to this amended petition, and his demurrer involves an application to compel the estate was undisposed of, and hence the issues on to bear extraordinary costs, cannot in adthe contest were not settled, when the point vance, before even the settlement of the now presented on this appeal—the validity issues involved in the contest, say that such of the order of the lower court settling the expenditures were necessary, or incurred in second account of the executor, Cross-arose good faith by the executor. In settling an acin the lower court. This account was filed count before the determination of the conon October 20, 1903, while the petition for re test the court has no power to enter into vocation of the prior will, and the contest of a consideration of these questions. It could the same, were pending. The appellant, Dil not determine on the settlement whether lon, filed his objections to four items of the there was any merit in the contest or not, account, aggregating $714.90, consisting of ex whether there was any validity in the claim penditures by the executor with reference to that the will subsequently offered for prothe olographic will presented by said Dillon bate was a forgery, or whether the will origfor probate. These items consisted of $150 inally probated was obtained by undue inpaid D. T. Ames for examination and opinion fluence or not. And yet these are all matters as handwriting expert on the said olographic which must necessarily be determined in orwill; a sum of $150 paid C. Eisenschimel for der that under section 1332, Code Civ. Proc., opinion as handwriting expert on the same supra, the reasonable discretion vested in the matter; the further sum of $100, retaining court to charge the executor, or the estate, fee, paid to said D. T. Ames as handwriting with the payment of the costs of the contest expert; and $314.90 paid for photographing can be exercised. The section above referred and enlarging the will. The court allowed all to evidently contemplates a trial of the conof these items in said account to the exec test before an allowance for costs of the exutor, Cross, and this appeal is taken from traordinary character here involved can be the order making such allowance.

made. It contemplates that the court shall We think the court erred in making such be in possession of the facts and circumallowance on the settling of this account. It stances surrounding the contest as a basis upshould have retired all these items objected on which its discretion can be properly and to from it, to be considered and disposed of fully exercised, and as upon a settlement of at a later date, and when the contest con the account the court could not be placed in cerning which the executor claimed to have possession of them, and could not determine incurred these expenses had been determined. whether the costs claimed were necessarily While it is the duty of an executor after a incurred, or whether the executor acted in will has been admitted to probate to defend good faith in incurring them, the items the will against attack (Estate of Whetton, 98 should have been retired from the account Cal. 203, 32 Pac. 970), this does not confer for subsequent consideration when the court upon him an unqualified right to incur and could be placed in full knowledge of all the charge against the estate all items of ex facts from which to determine whether, if penditure, in resisting the attack, which he found to be proper costs, they should be may see fit. His duty in this regard is quali charged against the executor or borne by the fied to the extent that he can only be allowed estate. This is what the lower court should for such expenditures as are necessary and have done with reference to the items in the are made in defending the attack upon the or account presented which were objected to by iginal probate in good faith. This is obvious

appellant. from the section of the Code (Code Civ. Proc. The order settling the account is reversed, $ 1332) providing for the allowance of costs with directions to the lower court to settle on the contest of a will after probate which the account by charging the executor with declares that "* * * if the probate is re $714.90 in addition to the balance charged voked, the costs must be paid by the party against him in the account as settled by the who resisted the revocation, or, out of the

court. property of the deceased, as the court directs." It will be observed from the reading

We concur: MCFARLAND, J.; HENof this section that, where the executor is

SHAW, J. unsuccessful in resisting the revocation of the probate, he is not as a matter of right entitled to his costs incurred in that contest,

(149 Cal. 695) but the court is vested with discretion to NORRIS V. HAY et ux. (L. A. 1,701.) determine whether he shall be charged with

(Supreme Court of California. Sept. 17, 1906.) ) · them, or whether the estate shall bear them.

1. VENDOR AND PURCHASER_CONTRACTS_REThis section contemplates that, before the es

SCISSION BY VENDOR-NONPAYMENT OF PURtate shall be charged with the costs of the CHIASE MONEY. contest, the court should be in a position to

A contract for the sale of real estate re

quired the purchaser to make a deposit to asknow whether or not the contest was waged

sume a mortgage, and to pay the balance before by the executor in good faith, with a rea a specified date. There was no provision for

forfeiture on default. The purchaser made the admissible, the purchaser not being a party deposit, but failed to pay the balance on the thereto, nor bound by any adjudication therein. date specified. Held, that such delay did not [Ed. Note. For cases in point. see vol. 30, terminate the contract, in the absence of meas Cent. Dig. Judgment, $8 1230–12:3.] ures by the vendor to terminate it.

[Ed. Xote.-For cases in point, see vol. 48, Department 2. Appeal from Supreme Cent. Dig. Vendor and Purchaser, $$ 369-372.] Court, Los Angeles County ; Curtis D. Wil2. SAME - RESCISSION BY I'URCHASER

bur, Judge. GROUNDS-SUFFICIENCY.

Action by Henry C. Norris against Andrew In an action by a purchaser to rescind the

Hay and another. From a judgment for contract for the vendor's fraudulent representations, it appeared that the vendor represented plaintiff, defendants appeal. Affirmed. that he had not made any prior contract to sell, that he had contracted to sell to a third person,

Jones & Weller, for appellants. Robt. E. that the third person had not paid the price on

Ross and Hunsaker & Britt, for respondent. the date specified therefor, that his contract provided for no forfeiture for uoncompliance, that time was not made the essence thereof,

LORIGAN, J. This action was brought that the vendor took no measures to terminate to rescind a contract for the sale and purit, and that the third person was endeavoring chase of land in Los Angeles county, and to perform, and claimed rights as against the purchaser. II eld to warrant a finding that the

to recover certain amounts of money paid representations were fraudulent authorizing the by plaintiff to defendant under the contract, purchaser to rescind since the contract with and for other relief, on the ground that the third person was in force.

at the time said contract was made, and, [Ed. Note.-For cases_in point, see vol. 48,

as an inducement to its execution, the deCent. Dig. Vendor and Purchaser, $$ 45-48.)

fendants Hays made false and fraudulent 3. SAME-FAILURE TO PAY PURCHASE PRICE

representations to plaintiff with regard to RIGHT OF VENDOR. A contract for the sale of real estate re

the condition of the title to the land agreed quired the purchaser to make a deposit with a to be purchased. Plaintiff had judgment, third person, to assume a mortgage, and to and defendants appeal from an order denypay the balance before a specified date. The

ing a motion for a new trial. purchaser made the deposit, but failed to pay the balance on the date specified. Held, that the

The court found that plaintiff and other vendor in suing for the deposit, stood on the persons associated themselves together in contract as if in force, for if he had elected to a joint venture to purchase a trart of land rescind he could only have sued for damages for breach of contract.

from the defendants Andrew Hay and his 4. SAME-BONA FIDE PURCHASER-NOTICE.

wife Lizzie T. Hay. That about December A person, contracting for the purchase of 22, 1902, an agreement was entered into be. real estate, who has no knowledge of an un tween Norris, representing the syndicate, and recorded prior contract, binding the vendor to

the Hays, whereby Norris was to purchase sell the premises to another, may rely on the representations of the vendor that no prior con

the said land for the sum of $104,000, the tract has been made.

contract providing for certain payments to [Ed. Note.--For cases in point, see vol. 48, be made in cash and the balance of the purCent. Dig. Vendor and Purchaser, 88 45-48.] chase price to be secured by mortgage upon 5. SAME-FALSE REPRESENTATIOxS BY VEN the property purchased; that at the time DOR-RIGIIT TO AVOID.

said contract was entered into the Hars, A vendor, contracting for the sale of real

for the purpose of inducing plaintiff and his estate, who represents to the purchaser that no prior contract relative to the premises exists,

associates to contract for the purchase of the will not be permitted to avoid the false repre

land on the terms agreed upon, represented sentations by claiming that though a prior con to plaintiff that they had not entered into tract to sell to a third person was made, yet, by reason of circumstances unknown to the pur

any contract or obligation whatever for the chaser, it might be inferred that the prior con

sale of said land to any person, and repeatedtract had been abandoned.

ly stated to plaintiff and his associates that 6. SAME-RIGHT OF PURCITASER TO RESCIND. they particularly never had any transaction

A vendor, in a contract of sale, agreed to with one West affecting the title to said convey a good title and represented that he had

land; that not a "scratch of a pen" had been made no other contract for the sale of the premises. The vendor had made a prior contract,

made between themselves and West concernand there was a doubt as to its validity. Held, ing the title to the property or with referthat the purchaser in the second contract, was

ence to any agreement to convey the same: entitled to rescind.

that believing such representations and state[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, $$ 45–48, 188–

ments to be true, and in reliance thereon and 193, 200:]

induced thereby plaintiff made the contract

of purchase with them above referred to; 7. JUDGMENT-RES JUDICATA-PERSONS CONCLUDED — ACTION TO RESCIND PURCHASE —

that plaintiff paid to defendants as the conEVIDENCE.

tract required $15,000 in coin, and executed Where, in an action to rescind a contract

promissory notes to the defendant Lizzie T. for the purchase of real estate, on the ground of the vendor's false representations that he

Hay for $37.000 secured by mortgage; that had not previously contracted to sell the prem- | plaintiff would not have executed said conises, it appeared that the vendor had previously tract nor made such payments or delivered contracted to sell the premises to one who had

said notes and mortgage, save that he bedeposited a part of the purchase price with a third person, the judgment roll in the action

lieved the statements and representations of by the vendor to recover the deposit, was in said Hays to be true; that, after such pay

ment and delivery of said notes, and before

when the contract with plaintiff was made.

final payment, plaintiff and his associates Up to that time no successful effort had

been

for the first time discovered that said rep made by the Hays or West to terminate the resentation made by the Hays, that they had contract. Mere delay on the part of West entered into no prior contract whatever af did not forfeit his right under it as the Hays fecting the title to said land was false and had not taken any effective measure to teruntrue, the lower court finding in that re minate them. North Stockton, etc., Co. v. gard, that, on September 4, 1902, several Fischer, 138 Cal. 101, 70 Pac. 1082, 71 Pac. months prior to the contract with plaintiff, 438. As far as the record discloses, there the Hays had entered into a contract with one was no action taken by either of these parW. F. West for the sale of said land to him ties which, when the contract with Norris for $80,000, upon which he had deposited was made, or subsequent thereto, precluded $10,000 with the Title Insurance & Trust West from tendering full payment on his Company of Los Angeles, the common agent part under his contract, notwithstanding finof all parties to the contract; that plaintiff al payment had been delayed, or from enforand his associates, when such representa

cing specific performance under its provisions. tions were made, were ignorant of the exist Aside from this, however, the evidence shows ence of the contract between Ilays and West;

that West was always insisting that he had that such contract between the Ilays and

subsisting rights under the contract, and subWest continued to be in force and effect from sequent to October 25th and up to the time its date till the commencement of this ac this present suit was commenced, was activetion by plaintiff, and had not been abrogated ly endeavoring to obtain the money with by the parties thereto. The court, on these

which to make final payment and was infindings, entered judgment, rescinding and

sisting that he had a right to do so. He was setting aside the contract between plaintiff making such endeavor, and asserting that and the Ilays, and awarded other relief pray

the contract was a subsisting one up to and ed for, which, as no attack is made on the after the payment by plaintiff of the $15,000 judgment, it is unnecessary to state.

to the Hays. In fact, it was he who first The principal point made upon this appeal brought notices of the existence of his conis that the evidence was insufficient to sus tract to plaintiff and his associates. He sent tain the finding that, at the time the Hays a party to open negotiations with them for entered into the contract with plaintiff, their the purchase from him of his rights under agreement with West as to the same land it, declaring that they could not get a title was in force and effect, and the further find except through him; that the Hays could ing that their representations to the plain not deliver the property to plaintiff and his tiff that no such contract existed were false associates unless they would see him and get and untrue. There can be no question but the title through him. what the evidence abundantly shows that the Taking, then, these facts into consideraHays emphatically represented to plaintiff tion—that the contract between the Hays and and his associates when negotiating for the West in itself provided for no forfeiture; sale to them of this land that they had that time was not made the essence of the not made any prior contract affecting the contract; that mere lapse of time of itself title to it with West or any other person, and did not terminate West's rights; that no we are satisfied that it appears satisfactorily agreement had been entered into by the from the evidence that, when the contract for parties rescinding, abandoning, or abrogating the sale of this land with Norris was entered it; that West was at all times endeavoring into, the West contract which it is not ques to perform its conditions and claiming rights tioned but that the Hays had executed, was under it, even as against plaintiff--and we a valid and subsisting contract.

think the court was right in finding that when The claim of appellants (while admitting the Norris contract was entered into the the execution of the contract with West) is West contract was in full force and effect, that the evidence shows, that, long prior to and that the representations to the contrary the subsequent contract with Norris, the embraced in the statements of the Hays Hays and West had abandoned and abrogated that they had entered into no contract whattheir contract. We think, however, that the ever with West or any other person were contrary is apparent. There is nothing in fraudulent and untrue. It is true that there the evidence to show any express abandon was evidence of some conduct on the part ment or abrogation. The West contract call of both the Hays and West relative to the ed for a deposit of $10,000, which was made, contract between them from which it is the assumption of a $13,000 mortgage by claimed a rescission or abandonment of it West and payment by him, on or before Oc followed. But we do not think any such tober 25, 1902, of the balance of $57,000. result was effected. The contract between There was no provision in the contract for them was in the hands of the Title Insurforfeiture of rights under it for noncompli ance & Trust Company as the common agent ance with the condition of final payment nor to whom West had paid the $10,000. After any provision making time the essence of default by West in the final payment to be the contract. The final payment to be made made October 25, 1902, the Hays had granted by West was overdue less than two months him further time, and then notified the Title

Insurance Company not to accept any further, simply render the matter of abandonment payment if West tendered it, and demanded equivocal.

equivocal. Under this situation, Norris was from the company payment to themselves not required to determine at his peril whethof the $10,000 deposited by West, but which, er the claim of West under bis contract however, West notified the trust company was valid or not. There was at least a not to pay. Upon such notice by West the reasonable doubt whether it had been abanHays might have acted and terminated the doned or rescinded, and Norris was not recontract, but they did not see fit to do so. quired in this condition of doubt to comThey commenced a suit (which was not at plete his payment and subsequently litigate issue when the present action was brought) with West the validity of his prior contract, against the trust company to recover the but was entitled upon discovery of the exist$10,000 deposited by West as money held ence of the West contract to institute a suit by it for them under the contract. In so for the rescission of his subsequent contract doing they were standing upon the contract with Hays. This is but the application of as still in force, and claiming the money by the general rule that a vendee is entitled to virtue of its terms. If the contract had rescind where it is apparent that there is a been rescinded or abandoned by the parties, reasonable doubt as to the validity of the the Hays would not have been entitled to title to the land which the vendor contracts maintain an action for this $10,000 under to convey to him. Under his contract, West the contract, but only to recover such dam acquired an equitable interest in the land. ages as might have resulted to them from

When the lIays contracted with Norris it West's breach of it, and, unless such damages, was for a good title, but at that very time, West would have been entitled to the $10,000. and even up to the time this action was comShively v. Semi-Tropic L. & W. Co., 99 Cal. menced, it was at least reasonably doubtful 259, 260, 33 Pac. 818. So that as the Hays, whether the prior contract with West was by their suit, were asserting rights under or was not subsisting. Under such circumthe contract as still in force, and West was stances Norris was not required to proceed claiming under the contract and endeavoring with his purchase and take title the validity to dispose of the land of the plaintiff and his of which as against the asserted claim of associates, asserting that title to it could West might involve him in litigation, and only come through him, these facts, instead the sufficiency of which it would require of supporting the theory of the Hays that parol evidence to sustain. Sheehy V. Miles, the contract was abandoned, would tend to 93 Cal. 288, 28 Pac. 1046; Gwin v. Calegaris, support the finding of the court that it was 139 Cal. 381, 73 Pac. 851. not.

It is claimed by appellant that the court And while we are satisfied that the evi erred in its rulings as to the exclusion and dence shows that at all the times in ques. admission of evidence. We do not think tion the West contract was unrescinded and in any of the rulings, if erroneous, were of such force, it is to be remarked that the contract | materiality as to require a reversal. between the Hays and West was not re It was not error to refuse to admit in evicorded, and that plaintiff had no knowledge dence the judgment roll offered by appelof its terms, nor of the transactions be lants in the case of Hay v. The Title Intween Hays and West, above referred to, nor surance & Trust Company, above referred to. of the commencement of the action against That action was brought to recover the the Title Insurance & Trust Company. Plain $10,000 deposited by West. The complaint tiff was not required to make inquiry as to was filed November 25, 1902. The title Inany of these matters. He had a right to surance Company subsequently paid the monrely absolutely upon the representations of ey into the court and West was by order the Hays that no contract of any kind af of interpleader substituted as defendant in fecting the title had been made, either with the action. He did not answer until JanWest or any other person. And giving the uary 26, 1903, three weeks after the comfacts immediately referred to, upon which plaint in the present action was filed-Janthe Hays rely to show an abandonment of the uary 5, 1903. As the right of plaintiff to contract, their greatest force, they simply recover was fixed at least as early as the tend to render the matter of abandonment filing of this complaint no proceedings in uncertain, and it is hardly necessary to say the case of Hay v. Title Insurance Company that, after having expressly represented that could affect those rights. The court adno contract whatever existed relative to the mitted the complaint in that case in evititle to these lands with West or any other dence. Conceding that this was proper, nothperson, the Hays will not be permitted to ing further in the judgment roll was adavoid their false representations in that re missible. Norris was not a party to that spect by claiming that, although a prior con action, and was not bound by anything aptract was made with West, still, by reason pearing in the pleadings, or by any matters of certain facts and circumstances unknown adjudicated, and the excluded portion of the to plaintiff and resting exclusively in pais, judgment roll applied to matters occurring it might be inferred that the contract was subsequent to the commencement of the acabandoned. As we say, these facts at best tion by plaintiff.

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