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The judgment is reversed, and the cause such testimony is concerned, was justified by remanded to the superior court, with direc the fact that upon the trial of the forgery tion to that court that if, within 20 days charge the defendant made no objection to after the filing therein of the remittitur from the testimony of Norine Schneider against this court, the district attorney shall apply | him, and that upon the trial of the perjury for an order dismissing that portion of the case, resulting in the judgment appealed indictment which charges the defendant with from, he did not object to the reading of the having been convicted of a felony prior to testimony given by her upon the other trial. the commission of the offense of perjury Furthermore, the testimony given upon the charged therein, and said application shall be forgery trial by the wife of the defendant, granted, the court, in the exercise of its dis

not objected to by him, was admissible cretion upon the facts and circumstances of against him upon the trial of a charge of perthe case, shall pronounce judgment and sen jury committed by him in the forgery case, tence upon the defendant, as provided in sec so far as it would tend to show the materialtion 126 of the Penal Code, and thereupon its ity of the testimony given by him upon the order denying a new trial shall stand af

trial for forgery, and made the basis of the firmed. If the district attorney shall not charge of perjury. within said period of 20 days make said application, the superior court is directed to grant a new trial.

(7 Cal. Unrep. 289)

In re DOMINICI'S ESTATE.* We concur: COOPER, J.; HALL, J.

KOILLER et al. V. ARNDT et al. (Civ.

231.)

(Court of Appeal, Third District. California. (4 Cal. A. 63)

July 23, 1906. On Rehearing, Aug. 22, PEOPLE v. CHADWICK. (Cr. 1,360.)

1906.) (Supreme Court of California. Aug. 31, 1906.) 1. APPEAL – Exclusion of EVIDENCE – PRE

SUMPTIONS. WITNESSES-HUSBAND AND WIFE-EVIDENCE

Where the court reserved its ruling on tesOF WIFE. Testimony given by defendant's wife on a

timony objected to, and the record is silent as

to what the ruling was, it must be presumed prosecution of defendant for forgery, and not

that the court excluded it, and it cannot be conobjected to by him, was admissible against him

sidered on appeal. on the trial of a charge of perjury committed by him in the forgery case, so far as it tended

2. WILLS-CONSTRUCTION-DEVISEES. to show the materiality of his testimony given

Testator gave his property to his sister and on the trial for forgery, and made the basis of

his nephew, S., and "his sister, my niece," and the charge for perjury.

on the death of his sister added a codicil giving [Ed. Note.-For cases in point, see vol. 50,

the share of his sister to "the other two residuCent. Dig. Witnesses, $ 785.]

ary legatees therein named, S., and to his sister,

my niece, whose name is Marie K., and whose In Bank. Appeal from Superior Court,

residence is Salzwedel, Germany, share and City and County of San Francisco; Carroll

share alike,” and confirming his will save as it

was inconsistent with his codicil. The evidence Cook, Judge.

showed that S. had a sister living, but that her Ernest Moore Chadwick was convicted of name was not Marie K., and that Marie K. was perjury, and he appeals. On petition to

not bis niece. Held, that the words referring to

Marie K. were used to express the name and transfer the case from the District Court of

residence of testator's niece, and not having Appeal to the Supreme Court. Petition de accomplished that were to be disregarded as sur. nied.

plusage. For opinion in Court of Appeal, see 87

3. SAME-COMPROMISE OF CONTEST-CONCLUPac. 384.

SIVENESS.

A person not a party to a will contest, nor Ernest Moore Chadwick, in pro. per. U. to a compromise resulting therefrom, is not 8. Webb, Atty. Gen., for the People.

bound by it.

Appeal from Superior Court, Stanislaus PER CURIAM. The petition of the de County; W. M. Conley, Judge. fendant to transfer this cause from the Dis Action by Marie Kohler and others against trict Court of Appeal of the First District Christiane Arndt and others to determine the to the Supreme Court, to be heard and de construction of the will of Joseph Dominici, termined therein, is denied.

deceased. From a judgment for defendant and If the decision of the District Court of Ap an order denying their motion for a new trial, peal was intended to declare, as the defend complainants and others appeal. Reversed. ant insists that it does, that when, upon the W. H. Hatton and. T. J. Maddux, for aptrial of a case, the wife of the defendant pellant Kohler. W. 0. Minor, J. M. Knox, has testified against him without objection and Loewy & Gutsch, for respondent Arndt. by him, her testimony then given may in all cases be read against him, over his objection, BUCKLES, J. This is an action to deterupon another trial of that or any other mine the proper construction of the last will charge against him, we do not approve of and testament of Joseph Dominici. The apthat portion of it. No such question was nec

peal is by Marie Kohler and the heirs of essarily involved in the case. The affirmance William Dominici, deceased, and the helrs of the judgment, so far as the reading of *Opinion vacated and rehearing granted by Su

preme Court September 21, 1906.

of Sophia Miller, deceased, from the judg tributed to Marie Kohler, to wit, one-half, ment and from the order denying their mo less one hundred dollars. W. H. Hatton, tion for a new trial.

Attorney for Marie Kohler. L. J. Maddux After making some specific devises, and ap- and L. W. Fulkerth, Attorneys for Contestpointing George W. Bates executor, the will ants. L. L. Dennett, Attorney for Petitionprovides: “Lastly, I give, bequeath and de ing Executor.” vise all the rest, residue and remainder of There were filed three petitions for dismy property, real and personal, of whatso tribution. One by George W. Bates, the ever kind or character or wheresoever situ executor, and asks that the estate be disated, share and share alike, unto my sister, tributed according to said stipulation. Louise Jahnke, and unto my nephew Hein petition for distribution by Christiane Arndt rich Schluther and his sister, my niece, all (formerly Christiane Schluther), the sister of residing in Luckow, Hanover, Germany." Heinrich Schluther. This petition alleges the This was dated November 22, 1897. On May death of Heinrich Schluther. That peti3, 1898, the following codicil was added, tioner is the only sister of Heinrich Schluthafter recital of having made the will: "Now er, and is the party named in said codicil therefore I do make, publish and declare as the sister of said Heinrich Schluther, and this to be a codicil to the same. I hereby niece of deceased, and who, by mistake, deratify and confirm said will in every re ceased called “Marie Kohler," and by misspect, save so far as any part thereof is in take stated to reside in Salzwedel, Altmark, consistent with this codicil. Whereas it has Germany. That it was the intention of decome to my knowledge that my sister, Louise ccased to naine Christiane Arndt in the Jahnke, one of the residuary legatees there codicil as the name of the sister of Heinin named, is dead, I hereby give, bequeath rich Schluther, and his intention to bequeath and devise the share of my said estate in to her, and not to Marie Kohler, the bequest said will given, bequeathed and devised to inentioned in said codicil as made to the my said sister to the other two residuary sister of Heinrich Schluther. That by the legatees therein named, Heinrich Schluther last bequest in said will the testator intendand to his sister, my niece, whose name is ed to devise and bequeath the residue of Marie Kohler, and whose residence is Salz his estate to said Louise Jahnke, Heinrich Wedel, Altmark, Germany, share and share Schluther, and his sister, as a class, to wit: a like.”

to his, testator's, sister, Louise Jahnke, and A contest of said will was filed by Sophia the two children of his sister, Marie SchluthC. Ward, a daughter of Sophia Miller, a er (formerly Marie Dominici), now deceased. deceased sister of testator, and, as a result That it was the intention of testator in makof said contest, the following stipulation in ing the bequest in said codicil to devise and writing was entered into: “It is hereby stip bequeath the share of his estate formerly ulated by and between the parties hereto devised and bequeathed to Louise Jah:ke, that the contest of the probate of will here

to said Heinrich Schluther and to his sister, tofore filed herein shall be dismissed, and

Christiane Arndt as a class, and that it was that letters testamentary shall be issued to not the intention of the testator, either in George W. Bates, the executor named in said

the will or codicil, to give Marie Kohler any. will, and that the property of the said es thing, and that her name and place of resitate shall be distributed as follows, to wit:

dence, to wit, Salzwedel, Altmark, Germany, “(1) The expenses of administration shall be were inserted in said codicil by mistake and paid 2) There shall be distributed to Marie

inadvertence. That this petitioner was not Kohler, the surviving legatee and devisee a party to the alleged compromise and setnamed in said will, one-half of the residue, tlement of contest. The third petition, that less one hundred ($100.00) dollars. The re

of Marie Kohler, after setting forth the maining portion of said estate shall be dis jurisdictional facts, alleges that she is one tributed as follows: (a) The specific legacies of the residuary legatees mentioned in said of one hundred dollars each shall be paid will and codicil. That by mistake she is to the daughter of Milton F. Dominici, and

described as the sister of Heinrich Schluther, to the female children of E. B. Learch. (b) and that it was the intention of the testator That part of said remaining portion of the to name the petitioner in said will and codisaid estate which, by the will, or the in cil as one of the residuary legatees, and that testate law of California would have been he so expressed his intention by expressly distributed to Marie Kohler, which is by naming her and her residence. Acknowl. this stipulation waived by her, shall be edges the compromise and claims the disdivided among the heirs represented by the tributive share therein stated she should contestants of said will. (c) The remaining have. portion of the said estate shall be distributed The court found that the word "and" was according to the intestate laws of the state inadvertently and unintentionally omitted of California, save and except that no por before the words "my niece, whose name is tion thereof shall be distributed to Marie Marie Kohler,” etc., in said codicil at the Kohler, except the portion of said estate time of the execution thereof. Inserting the hereinbefore, by stipulation, agreed to be dis word "and" the devise in the codicil is made

to read as follows, "to the other two resid The testator had been heard to speak of uary legatees, named, Heinrich Schluther and this sister, Christiane Schluther, several to his sister 'and' to my niece whose name is times and had written her a letter, but was Marie Kohler.” When the codicil was made, never heard to speak of Marie Kohler; and, Heinrich Schluther was living. The codicil when speaking of the Schluthers, it was alitself recites that there were but two resid ways in terms of affection. To one witness, uary legatees after the death of the testator's J. F. Beausang, in speaking of Christiane, he sister, Louise Jahnke, and the purpose of the always spoke of her, not by name, but as codicil seems to have been to dispose of the Heinrich Schluther's sister. Maria Schluther devise in the will to her. The inserting by was the mother of Christiane Arndt (Heinthe court of the word "and" there would still rich Schluther's sister), and during her lifeappear to be three residuary legatees. But time the testator wrote to her once or twice in order to determine the true meaning, in a year. She died June 18, 1890, and after this instance, of the testator, the will and the that he wrote one letter to Christiane, and codicil must be read in the light of each had not written at all for the last few years. other. The gentleman, Mr. Dennett, who She had written one later to testator andrew the will, testified that Dominici did not nouncing the death of her mother, and probremember the name of the niece, but was to ably another after the will was made anreturn with it at a later date and then the nouncing the death of his sister, Louise Jahnname was to be inserted. The testator did ke. It appears also that the testator and his return and gave the name "Marie Kohler," brother William, residing in La Grange, Cal., and whose residence is "Salzwedel, Altmark, were not on good terms, and while the SchluGermany,” and this Mr. Dennett supposed to thers were on friendly terms with Joseph, be the name and address of Heinrich Schlu the testator, Marie Kohler was on friendly ther's sister. It did not occur to him that the terms with William. The wife of the testar testator had named in his will four residuary tor was the godmother of Christiane Arndt. legatees, nor that he was adding another On November 17, 1897, the testator wrote his when the codicil was drawn. It seems to me sister, Louise Jahnke, and which was rethe will provides but three residuary legatees, ceived after her death by Christiane Arndt, to wit: Louise Jahnke, Heinrich Schluther, and is as follows: "Dear Sister: Have not and Heinrich Schluther's sister; "my niece" heard from you for a long time, sad news is but descriptive of "his sister," whose name from me, Solon my last joy isn't any more. was not then remembered by testator. When He died the 13th of this month. Requested he did remember the name of this sister of me to send you all his last greeting. Write Heinrich Schluther, as he doubtless supposed soon, also would like to hear from Henry he did, he returned and made the codicil. He Schluther and his sister.” The will was had then learned of the death of his sister, made November 22, 1897—five days later. Louise Jahnke, and, in addition to having the There is no testimony indicating any further name of Heinrich Schluther's sister inserteil, correspondence was received by testator from he desired also to dispose of the devise made the Schluthers, though there was testimony to his dead sister, and the scrivener, Mr. Den- showing that soon after Heinrich Schluther nett, proceeded to write the codicil, and, in was married in November, 1898, he wrote disposing of the dead sister's devise, used the to testator. The testimony of Mr. Dennett, words "the other two residuary legatees," though not clear upon the subject, would inwhich of itself shows that there were but dicate that the testator brought to him a three residuary legatees in the will, and, as letter from Marie Kohler when he came to Dennett understood the testator, there would have the codicil drawn. This is what Mr. be but two residuary legatees in the codicil; Dennett said: “When Mr. Dominici came and this is borne out by the phraseology “to down he gave me instructions for the will, the other two residuary legatees therein and I asked for the names and explained to named, Ileinrich Schluther and to his sister, him that the personal data would be suffimy niece, whose name is," meaning thereby cient if it was perfectly clear, but that the the sister of Heinrich Schluther. Now let us names would be better. Subsequently he see the probability of this having been the came down and at that time he told me that true intention of the testator. The testimony he had received a letter from Germany giving shows that he had been in correspondence them, and had ascertained that Louise Jahnwith the Schluther family for years. He ke was dead. And he then gave me, in accordwas a carpenter, and, before leaving Ger ance with our previous understanding, the many, had helped to construct the house the name which he wished to go in the will or in Schluthers lived in, which had also been oc the codicil, and I understood that to be the cupied by his parents. His son Solon bad name of Henry Schluther's sister. He never visited Germany and the Schluthers, and put suggested to me that he wanted to change in the most of his time with them, and they from Henry Schluther's sister to any one else. were his and his father's favorites. This son The idea and desire was simply to make clear Solon had died after returning to this coun the provision of the will. * * I don't try about November 13, 1897, a month remember particularly what part the letter before this will was made.

played in what took place, with the excep

tion of the fact that my attention was called they are used the words "whose name is to the fact that he had such a letter."

Marie Kohler and whose residence is SalzThese, then, are the facts relied upon to wedel, Altmark, Germany," were used to exsupport the claim the testator intended to press the name and residence of Christiane and did make Christiane Arndt his third re Arndt, and as they do not accomplish that siduary legatee in his will, and did not in are mere surplusage, which in the interpretatend by his codicil to make Marie Kohler a tion of the will and codicil are to be given no residuary legatee. There was some evidence meaning at all. The testimony in the case that the testator had declared his intention of and the wording of the will and of the codicil making the Schluther people his legatees, all show clearly that the inserting of the word but this testimony was objected to and ruling "and" after “my niece" in the court's interreserved, and although the record is silent as pretation of the codicil, was unwarranted. to what the ruling was, it must be presumed Christiane Arndt was neither a party to the the court excluded it when it came to con contest of the will nor to the compromise sider the matter and render its decision, and, which resulted therefrom, and could not be therefore, such evidence is not considered bound by it. Marie Kohler, not being a legahere. Civ. Code, SS 1318, 1310. The evidence tee, cannot claim as such under the said comshows the intimacy of the testator with the promise. Schluthers; that they were in his mind all The order and decree of distribution and the time, and that there was an absence of the order denying a new trial are reversed. friendliness between himself and Marie Kohler and her parents; that just before making We concur: CHIPMAN, P. J.; MCLAUGHthe codicil he had received a letter from LIN, J. Germany, whether from Christiane Arndt no

On Rehearing. tifying hiin of the death of his sister Louise or from Marie Kohler, but probaviy from

BUCKLES, J. This is a petition on the both. If from Marie, then, that is the only

part of Varie Kohler for a rehearing. The letter which appears to have been written by

petition contains nothing new. The case her to the testator. That tliere is a mistake

was fully gone into at the hearing and thorin the codicil is patent on the face of it. The

The oughly considered in writing the opinion. words in the will "to my sister Louise Jahnke

We are therefore unable to see any reason for and unto my nephew IIeinrich Schluther and

granting a rehearing. his sister, my niece," indicate without any

The petition is denied. doubt or confusion that Louise Jahnke, Heinrich Schluther and Heinrich's sister, who was

We concur: CIIIPMAN, P. J.; MCLAUGHtesta tor's niece, were the three persons and

LIN, J. none others who were intended to be the residuary legatees. Now when his sister dies

(4 Cal. App. 207) or when he learns of her death he desires to

NULL V. SUPERIOR COURT OF SHASTA dispose of the share she was to take and also

COUNTY et al. (Civ. 272.) to have the name of Heinrich's sister stated. and for these purposes, and for no other, (Court of Appeal, Third District. California. makes the codicil. This view is borne out Aug. 6, 1906. Rehearing Danied by Suby the statement in the codicil-"to the other

preme Court, Oct. 4, 1906.) two residuary legatees therein named, llein 1. JUSTICES OF THE PEACE-APPEAL-TRIAL. rich Schluther and to his sister," etc. Since

Where a justice of the peace determined on

a question of venue that he was without jurisit very clearly appears that the only inten

diction and dismissed the action, and plaintiff tion of the testator in making the codicil, appealed to the superior court, the appeal being outside of disposing of his dead sister's share, on a question of law, it was the duty of the suwas to have the name of Heinrich's sister,

perior court to affirm or reverse the decision,

and, if reversed, to remand the case for trial, who was his niece, expressed, to show the and, objection having been made to the jurisnames of all the persons who were his residu diction of the superior court, it had no authority ary legatees. Marie Kohler does not pretend

to proceed to a trial and to render judgment. to be Heinrich's sister, but there is no con

[Ed. Note.-For cases in_point, see vol. 31,

Cent. Dig. Justices of the Peace, $$ 472, 65) tention but what Christiane Arndt is his

657.] sister and the only sister living, the only

2. CERTIORARI JUDGMENTS PAYMENT OF other sister having died November 30, 1889, JUDGMENT. and of whose death the testator knew, as Where a judgment has been voluntarily shown by his letter to Christiane written

paid, it will not be reviewed on certiorari. October 26, 1890. The sister of IIeinrich was

(Ed. Note. For cases in point, see vol. 9,

Cent. Dig. Certiorari, $ 45.] one of the residuary legatees in the will.

3. SAME-BURDEN OF PROOF. The codicil says: “I hereby ratify and con

Where, on application for certiorari to refirm said will in every respect, save so far view a judgment, respondent set up the payment as any part thereof is inconsistent with this of the judgment to defeat the issuance of the

writ, the burden was on him to show that the codicil," and the codicil still making her a

payment was voluntary. residuary legatee, it seems to me there can be

[Ed. Note.-For cases in point, sec vol. 9, no question that in the connection in which Cent. Dig. Certiorari, & 106.]

Petition by E. M. Null for certiorari to note promised and agreed in writing to pay review the action of the superior court of said promissory note and all sums due and Shasta county in rendering a judgment to become due thereon, at Anderson, in 111against petitioner in an action brought derson township. Before proceeiling with against him by the J. F. Bedford company. the trial, defendant (petitioner herein) "olWrit issued.

jected to the trial of said cause and to the Reid & Dozier and J. H. Creighton, for

hearing in said superior court on the ground

that neither the superior court nor the juspetitioner. Braynard & Kimball, for respondent.

tice's court of Anderson township, in which the action was instituted, had any jurisdic

tion of the person of the defendant or of CHIPMAN, P. J. The following facts ap

the cause of action.” The court overruled pear from the petition and the return: Peti

the objection, and proceeded with the trial tioner is a resident of Shingletown town

and "entered judgment for plaintiff as prayed ship, Shasta county, and executed his prom

for in the complaint." The return to the issory note, of which the following is a copy:

writ consists of the certified papers and vari"$30.40. Shingletown, Cal., Aug. 6, 1902. One

ous steps taken in the case to final judgment day after date I promise to pay to the J.

in the superior court. F. Bedford Co. or order, thirty & 40-100 dol

There is an answer to the petition for the lars, interest at ten per cent. per annum.

E.

writ, verified by one of the attorneys of deM. Null.” The payee commenced an action

fendant herein. It sets forth facts relating on said note against the maker (petitioner

to the proceedings had in the two justices' here) in the justice's court of Anderson town

courts, where the case was pending on its ship, said county, at which time the maker

way to the superior court, some of which we a resident of Shingletown township.

do not deem material in the view of the matSummons was issued in said action and was

ter we have taken. It is alleged, among othserved in Redding township, said county,

er things, that the trial, or hearing, such as and was returned and filed with the justice

it was, in the justice's court of Redding townof the peace in Anderson township. The de

ship was hy consent of both parties; that a fendant in that action filed a demurrer to

trial was duly had before said justice, a the complaint for insufficiency of facts, and that the court "has no jurisdiction of the per

jury having been waived, witnesses sworn

and examined on the part of both parties, son of the defendant or the subject of the

and the cause submitted to the court for its action,” which was overruled, and the de

decision and judgment; that the matter was fendant answered, alleging part payment and

taken under advisement, and the "said justendering the amount still alleged to be due plaintiff; subsequently, defendant (petitioner

tice duly made, rendered, and entered his here) moved, on affidavit, for a change of the

judgment in said matter after consideration place of trial on the ground of bias of the

of the law as well as the facts, which said justice of the peace. The motion was granted

judgment was against the plaintiff therein and the cause transferred to Redding town and in favor of petitioner herein for his ship. It appears that, upon the filing of the

costs.” It is also alleged that at the trial papers with the justice of the peace of Red

in the superior court "petitioner did not ding township, plaintiff filed and amend

make any special appearance or objection ed complaint to which defendant answered,

to the jurisdiction of said superior court, and on June 16, 1905, the cause came on for

nor did he object to the hearing therein, but trial. Defendant objected to the trial on the

consented to the setting of said cause for ground that "neither the justice's court of

trial and caused subpanas to issue for witAnderson township nor the justice's court nesses in his behalf,” and that witnesses of Redding township had jurisdiction of the were sworn and examined by both parties, person of defendant or of the cause of but it does not appear to what issue or for action." The said justice of the peace of what purpose they were sworn. It is furRedding township rendered the following de ther alleged that, “long prior to the filing of cision: "After due consideration of the law petitioner's petition herein, petitioner freeas well as the facts in the case, the court ly paid the full amount of said judgfinds that it is without jurisdiction in the ment and costs, and duly received a full matter; that the cause should be properly

written receipt and satisfaction of the same," tried in Shingletown township,” and judg as follows: "[Title of Court and Cause.] ment passed for defendant for costs. It To W. 0. Blodgett. Esq., County Clerk of further appears that plaintiff in that action Shasta County. You are hereby authorized perfected its appeal to the superior court, and instructed to satisfy of record the judy. giving notice that the appeal was "taken

ment heretofore rendered in the above enon questions of both law and fact," and on titled action, the same having this day been July 14, 1905, all the papers. in the action fully paid and discharged. Dated Feby. 28th, were certified to the superior court and on 1906. Charles H. Braynard, Attorney for October 27, 1903, the cause came on for trial Plaintiff.” It is well settled by our Supreme in said court, the plaintiff, by leave of court, Court that an action commenced in the jushaving amended its complaint so as to allege tice's court cannot be tried anew in the supethat defendant, since the execution of said | rior court until the issues of fact have been

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