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Pac. 163. We think it may be further said that this pecuniary loss may be either a loss arising from the deprivation of something to which such heirs would have been legally entitled if the person had lived, or a loss arising from a deprivation of benefits which, from all the circumstances of the particular case it could be reasonably expected such heirs would have received from the deceased had his life not been taken, although the obligation resting on him to bestow such benefits on them may have a moral obligation only. 8 Am. & Eng. Ency. of Law (2d Ed.) pp. 922, 939; 13 Cyc. p. 367; Redfield v. Oakland C. S. Ry. Co., 110 Cal. 288, 42 Pac. 822; 3 Suth. on Dam. (3d Ed.) § 1272, p.. 3736; ibid. § 1273, p. 3740.

The judgment and order are reversed, and the cause remanded for a new trial.

We concur: BEATTY, C. J.; McFARLAND, J.; HENSHAW, J.; LORIGAN, J.

MCLAUGHLIN, J. I dissent. "All intendments of the law are in favor of the regularity of the judgment and proceedings in the court below, and it is incumbent upon the appellants to show error affirmatively." People v. Gibson, 106 Cal. 458, 39 Pac. 864; McLennan v. Wilcox, 126 Cal. 53, 58 Pac. 305; People v. Allen, 144 Cal. 300, 77 Pac. 948. The objection to the question asked Mrs. Sneed was interposed after she had answered, and there is nothing in the record to show that the court was requested to, or did, consider the objection as having been made at the proper time. True, this may have been the case, but it might with equal plausibility be assumed that the objection was overruled because it was tardily made. Under the rule above quoted the latter view should be accepted as correct, and this done it certainly cannot be said that the ruling was erroneous. A motion to strike evidence from the record must be based on a timely and sufficient objection to its introduction, and hence there was no error in refusing to eliminate the testimony of Mrs. Sneed. If. however, it be conceded that the evidence was objectionable and the ruling improper, still I cannot persuade myself the error was prejudicial. A mother may, perhaps, know that her son had no knowledge of electricity or its dangers, because he has never had an opportunity to acquire such knowledge either by personal observation, reading. or intercourse with persons who could give him information on the subject. If his life has been spent at a place so isolated that she must know of his every act, she would be in a position to say that he had no knowledge of something he had never seen, and could not have heard or read about. The answer of Mrs. Sneed was of a very general character, and upon cross-examination it was demonstrated beyond question that she could not have known, and did not know, anything about her son's knowledge touching this or

any other subject. Crediting jurors with the usual measure of intelligence they certainly could not have been misled by a general statement absolutely unsupported by the reasons she gave for having made it.

NOTE.-Justice SLOSS being disqualified, Justice MCLAUGHLIN, one of the justices of the District Court of Appeal for the Third Appellate District, participates herein pro tempore, pursuant to section 4, art. 6, of the Constitution.

(149 Cal. 683)

In re DILLON'S ESTATE. (Sac. 1,478.) DILLON v. CROSS.

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(Supreme Court of California. Sept. 17, 1906.) EXECUTORS MANAGEMENT OF ESTATE-EXPENSE ACCOUNTS-REVOCATION OF PROBATE -Costs.

After the probate of a will and the appointment of an executor, a petition was filed for the revocation thereof. While the issues were still unsettled, the court allowed, instead of retaining for future determination, items of expense in an account of the executor for the services of experts in handwriting to determine the validity of a second will. Held, erroneous, in view of Code Civ. Proc. § 1332, providing that, where the probate of a will is revoked, the costs must be paid by the party resisting the revocation, or out of the estate, as the court directs.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators. §§ 451-453; vol. 49, Cent. Dig. Wills, §§ 891-894.]

Department 2. Appeal from Superior Court, Nevada County; F. T. Nilon, Judge.

Objections by P. F. Dillon to an account of C. W. Cross, executor of Patrick Dillon, deceased. From an order allowing the account, objector appeals. Reversed with directions.

James G. Maguire and Thomas S. Ford, for appellant. P. F. Simonds, for respondent.

LORIGAN, J. A document dated March 8, 1904, purporting to be the last will and testament of Patrick Dillon, deceased, was duly admitted to probate in the superior court of Nevada county and letters testamentary issued to the respondent, C. W. Cross, named in the will as executor. Within a year thereafter another document, dated October 24, 1904, which was claimed to be in fact the last will of said deceased-olographic in character was filed by appellant, P. F. Dillon, together with a petition by him praying for its admission to probate and that the probate of the prior will be revoked and the letters testamentary which were issued thereon to said C. W. Cross be canceled and set aside. In his answer to this petition said C. W. Cross, as executor, set up that the alleged document filed by the appellant, Dillon, was a false, fictitious, and forged instrument. Thereafter by amendment to his petition for revocation of the original probate, and the admission to probate of what he claimed to be the later will, the appellant, Dillon, filed a contest against the validity of the prior will, urging as ground therefor that its exe

cution had been procured through the undue Influence of C. W. Cross, the executor named therein. The respondent, Cross, demurred to this amended petition, and his demurrer was undisposed of, and hence the issues on the contest were not settled, when the point now presented on this appeal-the validity of the order of the lower court settling the second account of the executor, Cross-arose in the lower court. This account was filed on October 20, 1905, while the petition for revocation of the prior will, and the contest of the same, were pending. The appellant, Dillon, filed his objections to four items of the account, aggregating $714.90, consisting of expenditures by the executor with reference to the olographic will presented by said Dillon for probate. These items consisted of $150 paid D. T. Ames for examination and opinion as handwriting expert on the said olographic will; a sum of $150 paid C. Eisenschimel for opinion as handwriting expert on the same matter; the further sum of $100, retaining fee, paid to said D. T. Ames as handwriting expert; and $314.90 paid for photographing and enlarging the will. The court allowed all of these items in said account to the executor, Cross, and this appeal is taken from the order making such allowance.

We think the court erred in making such allowance on the settling of this account. It should have retired all these items objected to from it, to be considered and disposed of at a later date, and when the contest concerning which the executor claimed to have incurred these expenses had been determined. While it is the duty of an executor after a will has been admitted to probate to defend the will against attack (Estate of Whetton, 98 Cal. 203, 32 Pac. 970), this does not confer upon him an unqualified right to incur and charge against the estate all items of expenditure, in resisting the attack, which he may see fit. His duty in this regard is qualified to the extent that he can only be allowed for such expenditures as are necessary and are made in defending the attack upon the original probate in good faith. This is obvious from the section of the Code (Code Civ. Proc. § 1332) providing for the allowance of costs on the contest of a will after probate which declares that "*** if the probate is revoked, the costs must be paid by the party who resisted the revocation, or, out of the property of the deceased, as the court directs." It will be observed from the reading of this section that, where the executor is unsuccessful in resisting the revocation of the probate, he is not as a matter of right entitled to his costs incurred in that contest, but the court is vested with discretion to determine whether he shall be charged with them, or whether the estate shall bear them. This section contemplates that, before the estate shall be charged with the costs of the contest, the court should be in a position to know whether or not the contest was waged by the executor in good faith, with a rea

sonable belief that the attack on the original probate was unjustified. probate was unjustified. Certainly the court upon the settlement of an account, which involves an application to compel the estate to bear extraordinary costs, cannot in advance, before even the settlement of the issues involved in the contest, say that such expenditures were necessary, or incurred in good faith by the executor. In settling aṇ account before the determination of the contest the court has no power to enter into a consideration of these questions. It could not determine on the settlement whether there was any merit in the contest or not, whether there was any validity in the claim that the will subsequently offered for probate was a forgery, or whether the will originally probated was obtained by undue influence or not. And yet these are all matters which must necessarily be determined in order that under section 1332, Code Civ. Proc., supra, the reasonable discretion vested in the court to charge the executor, or the estate, with the payment of the costs of the contest can be exercised. The section above referred to evidently contemplates a trial of the contest before an allowance for costs of the extraordinary character here involved can be made. It contemplates that the court shall be in possession of the facts and circumstances surrounding the contest as a basis upon which its discretion can be properly and fully exercised, and as upon a settlement of the account the court could not be placed in possession of them, and could not determine whether the costs claimed were necessarily incurred, or whether the executor acted in good faith in incurring them, the items should have been retired from the account for subsequent consideration when the court could be placed in full knowledge of all the facts from which to determine whether, if found to be proper costs, they should be charged against the executor or borne by the estate. This is what the lower court should have done with reference to the items in the account presented which were objected to by appellant.

The order settling the account is reversed, with directions to the lower court to settle the account by charging the executor with $714.90 in addition to the balance charged against him in the account as settled by the court.

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forfeiture on default. The purchaser made the deposit, but failed to pay the balance on the date specified. Held, that such delay did not terminate the contract, in the absence of measures by the vendor to terminate it.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 369-372.] 2. SAME RESCISSION BY PURCHASER GROUNDS-SUFFICIENCY.

In an action by a purchaser to rescind the contract for the vendor's fraudulent representations, it appeared that the vendor represented that he had not made any prior contract to sell, that he had contracted to sell to a third person, that the third person had not paid the price on the date specified therefor, that his contract provided for no forfeiture for noncompliance, that time was not made the essence thereof, that the vendor took no measures to terminate it, and that the third person was endeavoring to perform, and claimed rights as against the purchaser. Held to warrant a finding that the representations were fraudulent authorizing the purchaser to rescind since the contract with the third person was in force.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 45-48.] 3. SAME-FAILURE TO PAY PURCHASE PRICERIGHT OF VENDOR.

A contract for the sale of real estate required the purchaser to make a deposit with a third person, to assume a mortgage, and to pay the balance before a specified date. The purchaser made the deposit, but failed to pay the balance on the date specified. Held, that the vendor in suing for the deposit, stood on the contract as if in force, for if he had elected to rescind he could only have sued for damages for breach of contract.

4. SAME-BONA FIDE PURCHASER-NOTICE.

A person, contracting for the purchase of real estate, who has no knowledge of an unrecorded prior contract, binding the vendor to sell the premises to another, may rely on the representations of the vendor that no prior contract has been made.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 45-48.] 5. SAME-FALSE REPRESENTATIONS BY VENDOR-RIGHT TO AVOID.

A vendor, contracting for the sale of real estate, who represents to the purchaser that no prior contract relative to the premises exists, will not be permitted to avoid the false representations by claiming that though a prior contract to sell to a third person was made, yet, by reason of circumstances unknown to the purchaser, it might be inferred that the prior contract had been abandoned.

6. SAME RIGHT OF PURCHASER TO RESCIND.

A vendor, in a contract of sale, agreed to convey a good title and represented that he had made no other contract for the sale of the premises. The vendor had made a prior contract, and there was a doubt as to its validity. Held, that the purchaser in the second contract, was entitled to rescind.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 45-48, 188193, 200.]

7. JUDGMENT-RES JUDICATA-PERSONS CONCLUDED ACTION TO RESCIND PURCHASE — EVIDENCE.

Where, in an action to rescind a contract for the purchase of real estate, on the ground of the vendor's false representations that he had not previously contracted to sell the premises, it appeared that the vendor had previously contracted to sell the premises to one who had deposited a part of the purchase price with a third person, the judgment roll in the action by the vendor to recover the deposit, was in

admissible, the purchaser not being a party thereto, nor bound by any adjudication therein. [Ed. Note.-For cases in point. see vol. 30, Cent. Dig. Judgment, §§ 1230-1233.]

Department 2. Appeal from Supreme Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by Henry C. Norris against Andrew Hay and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Jones & Weller, for appellants. Robt. E. Ross and Hunsaker & Britt, for respondent.

LORIGAN, J. This action was brought to rescind a contract for the sale and purchase of land in Los Angeles county, and to recover certain amounts of money paid by plaintiff to defendant under the contract, and for other relief, on the ground that at the time said contract was made, and, as an inducement to its execution, the defendants Hays made false and fraudulent representations to plaintiff with regard to the condition of the title to the land agreed to be purchased. Plaintiff had judgment, and defendants appeal from an order denying a motion for a new trial.

The court found that plaintiff and other persons associated themselves together in a joint venture to purchase a tract of land from the defendants Andrew Hay and his wife Lizzie T. Hay. That about December 22, 1902, an agreement was entered into between Norris, representing the syndicate, and the Hays, whereby Norris was to purchase the said land for the sum of $104,000, the contract providing for certain payments to be made in cash and the balance of the purchase price to be secured by mortgage upon the property purchased; that at the time said contract was entered into. the Hays, for the purpose of inducing plaintiff and his associates to contract for the purchase of the land on the terms agreed upon, represented to plaintiff that they had not entered into any contract or obligation whatever for the sale of said land to any person, and repeatedly stated to plaintiff and his associates that they particularly never had any transaction with one West affecting the title to said land; that not a "scratch of a pen" had been made between themselves and West concerning the title to the property or with reference to any agreement to convey the same: that believing such representations and statements to be true, and in reliance thereon and induced thereby plaintiff made the contract of purchase with them above referred to; that plaintiff paid to defendants as the contract required $15,000 in coin, and executed promissory notes to the defendant Lizzie T. Hay for $37.000 secured by mortgage; that plaintiff would not have executed said contract nor made such payments or delivered said notes and mortgage, save that he believed the statements and representations of said Hays to be true; that, after such pay

when the contract with plaintiff was made. Up to that time no successful effort had been made by the Hays or West to terminate the contract. Mere delay on the part of West did not forfeit his right under it as the Hays had not taken any effective measure to terminate them. North Stockton, etc., Co. v. Fischer, 138 Cal. 101, 70 Pac. 1082, 71 Pac. 438. As far as the record discloses, there was no action taken by either of these parties which, when the contract with Norris was made, or subsequent thereto, precluded West from tendering full payment on his part under his contract, notwithstanding final payment had been delayed, or from enfor

ment and delivery of said notes, and before final payment, plaintiff and his associates for the first time discovered that said representation made by the Hays, that they had entered into no prior contract whatever affecting the title to said land was false and untrue, the lower court finding in that regard, that, on September 4, 1902, several months prior to the contract with plaintiff, the Hays had entered into a contract with one W. F. West for the sale of said land to him for $80,000, upon which he had deposited $10,000 with the Title Insurance & Trust Company of Los Angeles, the common agent of all parties to the contract; that plaintiff and his associates, when such representa-cing specific performance under its provisions. tions were made, were ignorant of the existence of the contract between IIays and West; that such contract between the IIays and West continued to be in force and effect from its date till the commencement of this action by plaintiff, and had not been abrogated by the parties thereto. The court, on these findings. entered judgment, rescinding and setting aside the contract between plaintiff and the Hays, and awarded other relief prayed for, which, as no attack is made on the judgment, it is unnecessary to state.

Aside from this, however, the evidence shows that West was always insisting that he had subsisting rights under the contract, and subsequent to October 25th and up to the time this present suit was commenced, was actively endeavoring to obtain the money with which to make final payment and was insisting that he had a right to do so. He was making such endeavor, and asserting that the contract was a subsisting one up to and after the payment by plaintiff of the $15,000 to the Hays. In fact, it was he who first brought notices of the existence of his contract to plaintiff and his associates. He sent a party to open negotiations with them for the purchase from him of his rights under it, declaring that they could not get a title except through him; that the Hays could not deliver the property to plaintiff and his associates unless they would see him and get the title through him.

Taking, then, these facts into considera

The principal point made upon this appeal is that the evidence was insufficient to sustain the finding that, at the time the Hays entered into the contract with plaintiff, their agreement with West as to the same land was in force and effect, and the further finding that their representations to the plaintiff that no such contract existed were false and untrue. There can be no question but what the evidence abundantly shows that the Hays emphatically represented to plaintiff | tion-that the contract between the Hays and and his associates when negotiating for the sale to them of this land that they had not made any prior contract affecting the title to it with West or any other person, and we are satisfied that it appears satisfactorily from the evidence that, when the contract for the sale of this land with Norris was entered into, the West contract which it is not questioned but that the Hays had executed, was a valid and subsisting contract.

The claim of appellants (while admitting the execution of the contract with West) is that the evidence shows, that, long prior to the subsequent contract with Norris, the Hays and West had abandoned and abrogated their contract. We think, however, that the contrary is apparent. There is nothing in the evidence to show any express abandonment or abrogation. The West contract called for a deposit of $10,000, which was made, the assumption of a $13,000 mortgage by West and payment by him, on or before October 25, 1902, of the balance of $57,000. There was no provision in the contract for forfeiture of rights under it for noncompliance with the condition of final payment nor any provision making time the essence of the contract. The final payment to be made by West was overdue less than two months

West in itself provided for no forfeiture; that time was not made the essence of the contract; that mere lapse of time of itself did not terminate West's rights; that no agreement had been entered into by the parties rescinding, abandoning, or abrogating it; that West was at all times endeavoring to perform its conditions and claiming rights under it, even as against plaintiff-and we think the court was right in finding that when the Norris contract was entered into the West contract was in full force and effect, and that the representations to the contrary embraced in the statements of the Hays that they had entered into no contract whatever with West or any other person were fraudulent and untrue. It is true that there was evidence of some conduct on the part of both the Hays and West relative to the contract between them from which it is claimed a rescission or abandonment of it followed. But we do not think any such result was effected. The contract between them was in the hands of the Title Insurance & Trust Company as the common agent to whom West had paid the $10,000. After default by West in the final payment to be made October 25, 1902, the Hays had granted him further time, and then notified the Title

Insurance Company not to accept any further payment if West tendered it, and demanded from the company payment to themselves of the $10,000 deposited by West, but which, however, West notified the trust company not to pay. Upon such notice by West the Hays might have acted and terminated the contract, but they did not see fit to do so. They commenced a suit (which was not at issue when the present action was brought) against the trust company to recover the $10,000 deposited by West as money held by it for them under the contract. doing they were standing upon the contract as still in force, and claiming the money by virtue of its terms. If the contract had been rescinded or abandoned by the parties, the Hays would not have been entitled to maintain an action for this $10,000 under the contract, but only to recover such damages as might have resulted to them from West's breach of it, and, unless such damages, West would have been entitled to the $10,000. Shively v. Semi-Tropic L. & W. Co., 99 Cal. 259, 260, 33 Pac. 848. So that as the IIays, by their suit, were asserting rights under the contract as still in force, and West was claiming under the contract and endeavoring to dispose of the land of the plaintiff and his associates, asserting that title to it could only come through him, these facts, instead of supporting the theory of the Hays that the contract was abandoned, would tend to support the finding of the court that it was not.

And while we are satisfied that the evidence shows that at all the times in question the West contract was unrescinded and in force, it is to be remarked that the contract between the Hays and West was not recorded, and that plaintiff had no knowledge of its terms, nor of the transactions between Hays and West, above referred to, nor of the commencement of the action against the Title Insurance & Trust Company. Plaintiff was not required to make inquiry as to any of these matters. He had a right to rely absolutely upon the representations of the Hays that no contract of any kind affecting the title had been made, either with West or any other person. And giving the facts immediately referred to, upon which the Hays rely to show an abandonment of the contract, their greatest force, they simply tend to render the matter of abandonment uncertain, and it is hardly necessary to say that, after having expressly represented that no contract whatever existed relative to the title to these lands with West or any other person, the Hays will not be permitted to avoid their false representations in that respect by claiming that, although a prior contract was made with West, still, by reason of certain facts and circumstances unknown to plaintiff and resting exclusively in pais, it might be inferred that the contract was abandoned. As we say, these facts at best

simply render the matter of abandonment equivocal. Under this situation, Norris was not required to determine at his peril whether the claim of West under his contract was valid or not. There was at least a reasonable doubt whether it had been abandoned or rescinded, and Norris was not required in this condition of doubt to complete his payment and subsequently litigate with West the validity of his prior contract, but was entitled upon discovery of the existence of the West contract to institute a suit for the rescission of his subsequent contract with Hays. This is but the application of the general rule that a vendee is entitled to rescind where it is apparent that there is a reasonable doubt as to the validity of the title to the land which the vendor contracts to convey to him. Under his contract, West acquired an equitable interest in the land. When the Hays contracted with Norris it was for a good title, but at that very time, and even up to the time this action was commenced, it was at least reasonably doubtful whether the prior contract with West was or was not subsisting. Under such circumstances Norris was not required to proceed with his purchase and take title the validity of which as against the asserted claim of West might involve him in litigation, and the sufficiency of which it would require parol evidence to sustain. Sheehy v. Miles, 93 Cal. 288, 28 Pac. 1046; Gwin v. Calegaris, 139 Cal. 384, 73 Pac. 851.

It is claimed by appellant that the court erred in its rulings as to the exclusion and admission of evidence. We do not think any of the rulings, if erroneous, were of such materiality as to require a reversal.

It was not error to refuse to admit in evidence the judgment roll offered by appellants in the case of Hay v. The Title Insurance & Trust Company, above referred to. That action was brought to recover the $10,000 deposited by West. The complaint was filed November 25, 1902. The title Insurance Company subsequently paid the money into the court and West was by order of interpleader substituted as defendant in the action. He did not answer until January 26, 1903, three weeks after the complaint in the present action was filed-January 5, 1903. As the right of plaintiff to recover was fixed at least as early as the filing of this complaint no proceedings in the case of Hay v. Title Insurance Company could affect those rights. The court admitted the complaint in that case in evidence. Conceding that this was proper, nothing further in the judgment roll was admissible. Norris was not a party to that action, and was not bound by anything appearing in the pleadings, or by any matters adjudicated, and the excluded portion of the judgment roll applied to matters occurring subsequent to the commencement of the action by plaintiff.

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