Estate of Wilson, 117 Cal., 262, 276, 49 P. 172, 711; Estate of Purcell, 164 Cal. 300, 128 P. 932. This evidence was entitled to such weight and consideration as the trial court thought it deserved. Dunphy v. Dunphy, 161 Cal. 380, 385, 119 P. 512, 38 L. R. A. (N. S.) 818, Ann. Cas. 1913B, 1230. It tended on the part of the contest a gradually increasing unsoundness of mind, always manifest and ever present, affecting his mental capacity before and after the date when he made the questioned will. Other evidence, mostly that in behalf of proponent, tended to show he was suffering from a form of insanity characterized by systematized delusions with lucid intervals in between. Appellant contends that the evidence fails to show that the testamentary act was not performed in a lucid interval. But from this entire evidence the trial court could have concluded either that Mr. Barr had no testamentary capacity during the period from December 12, 1912 (the date of his commitment for insanity in Oregon), to his death in 1916, or that the will was not executed during a lucid interval of his mind. In this condition of the case upon the testimony the decision of the trial court cannot be disturbed upon the ground that it was contrary to the evidence. Estate of Jones, 166 Cal. 108, 110, 135 P. 288; Estate of Martin, 170 Cal. 657, 663, 151 P. 138; Estate of Russell, 189 Cal. 759, 768, 210 P. 249. is well to bear in mind that the trial court, executed. was warranted in believing as true all of the evidence in support of contestant's claims (unless it was inherently so improbable as to be entirely unworthy of belief) and in disregarding as untrue all of the evidence in behalf of proponent which was in any way contradicted or otherwise impeached. It is likewise the duty of the ap-ant to show that Mr. Barr was afflicted with pellate court, in reviewing the facts, to interpret the evidence so as to support the finding to the extent that it is reasonably susceptible thereto in the light of the foregoing rule. Estate of Russell, 189 Cal. 759, 763, 210 P. 249. As to the power of the appellate courts in the premises it was said in Estate of Snowball, 157 Cal. 301, 107 P. 598, in will contests the rule is the same as in other proceedings, that all questions of the weight of the evidence and the credibility of the witnesses are for the trial court, and if there be any substantial evidence to support the finding it cannot be set aside by the reviewing court, although said court might believe the great preponderance of the evidence was the other way. Appellant, while admitting that decedent was insane, insists that the purported will was written in a lucid interval. Much of the evidence, testimonial and documentary, showed the condition of Mr. Barr's mind before and after writing the document in dispute. Proponent and her sister both testified that decedent was sane when he performed the alleged testamentary act. Friends and hospital attendants testified that while at times, decedent suffered from delusions, there were intervals when he ap peared and acted rational. Two alienists, on behalf of contestant, gave it as their opinion that decedent was an incurable paranoiac. Without attempting to analyze the mass of evidence presented upon this subject, suffice to say that it but presents the common situation of a conflict of evidence which was to be resolved by the trial court. Estate of Russell, 189 Cal. 759, 768, 210 P. 249. The judgment is affirmed. We concur: TYLER, P. J.; KNIGHT, J. · In re CASTAGNOLA'S ESTATE. CASTAGNOLA et al. v. CANEPA et al. (Civ. 4941.) (District Court of Appeal, First District, Division 2, California. Sept. 23, 1924. Hearing Denied by Supreme Court Nov. 17, 1924.) Husband and wife 249-Insurance policy on husband's life paid from community funds held to be community property. In the Estate .of O'Connor, 51 Cal. App. 339, 196 P. 792, a will was refused admis-1. sion to probate upon the ground that the testatrix was not of sound and disposing mind at the time the instrument was signed by her. In that case Mr. Justice Waste, then presiding justice of this court, makes a clear statement of the law which we think is applicable here. For our conclusion we may well paraphrase the language found on page 346 of the opinion (196 P. 792). When policy of insurance is taken on husband's life during coverture, and premiums are paid from community funds, it is community property; marital status at time of contract determining its character. 2. Insurance 585 (3)-Insurance policy on life of husband, payable to wife and her per- · sonal representatives, held gift to her of policy and proceeds. on [4, 5] Much evidence was admitted both sides to show the condition of Mr. Barr's mind before and after the date of his testamentary act. Such evidence was relevant and important for its bearing upon the condition of his mind when the will was When policy of insurance is taken on husband's life during coverture, and wife, her executors, administrators, or assigns are beneficiaries named, husband is presumed to have made gift to her of policy and proceeds, and these become her separate property. (230 P.) 3. Insurance 586-When interest of bene-render or loan value. Two annual payments ficiary mere expectancy stated. had been made, and the death of the insured Where contract of insurance expressly re-occurred after the third payment was due in serves right to change beneficiaries, interest of what is called the 31-day period of grace. designated beneficiary is that of mere expectan- The proceeds of the policy were paid to the cy of uncompleted gift. administrator of the estate of the insured, and constituted practically the entire estate covered by the decree of distribution. 4. Husband and wife 249-Proceeds of husband's life insurance held to be community estate to which respective parents of husband and wife were entitled. Where husband made life insurance policy payable to wife, but, if she predeceased him, it should be paid to his estate, policy being community property during coverture, proceeds retained such character, husband's designation of his estate as beneficiary in event of wife's death being merely designation of his general estate as successor to proceeds, and hence proceeds were community property to which respective parents of husband and wife were entitled, under Civ. Code, § 1386, subd. 8. Appeal from Superior Court, Alameda County; E. C. Robinson, Judge. In the matter of the estate of David Castagnola, deceased. Action by Giovanni Castagnola and another against Batista Canepa and another. From portion of order of final distribution, plaintiffs appeal. Reversed. J. J. Paulsell and Frederick W. Crawford, both of San Francisco, for appellants. Walter H. Eliassen, of Oakland, for respondent administrator. C. A. Cogswell, of Berkeley, for respondents Canepa. NOURSE, J. This is an appeal from a portion of a decree of final distribution in the estate of David Castagnola, distributing to the father and mother of his predeceased wife the proceeds of a certain insurance policy taken on his life during coverture. The appellants are the father and mother of the insured husband. David Castagnola, the insured husband, with his wife and daughter, constituting the entire immediate family of the insured, were all found dead at one time. The parties to this proceeding, assuming that the provisions of subdivision 40 of section 1963, Code of Civil Procedure, applied, stipulated that the minor child, being under the age of 15 died first; that the wife, being between the ages of 15 and 60, died next, and that the husband, being of about the same age as the wife, was the last to survive. The death of these three occurred on July 16, 1922, and all died intestate. On June 15, 1920, David Castagnola, the husband and father, procured a policy of insurance on his life in the sum of $3,000. This policy was what is termed "a 20 payment life policy," requiring 20 full annual payments. It also provided that 3 full annual payments must be made before the policy should have any cash sur By the terms of the policy the beneficiaries were declared to be the wife and daughter of the insured, "share and share alike, or all to the survivor at my death." The right to change the beneficiaries was expressly reserved in the policy, in the event that it was not assigned, and it was expressly declared that, if the insured should survive the beneficiaries, or either of them, the proceeds of the policy or the share of such beneficiaries should be paid to the executors, administrators, or assigns of the insured. The trial court held that the policy of insurance became the separate property of the wife as the sole survivor upon the death of the daughter, and that it constituted a gift to her from her husband. It was then held that, there being no heirs other than those mentioned in subdivision 8 of section 1386 of the Civil Code, and the property having come to the husband as the separate property of his wife, the father and mother of the predeceased wife succeeded to the entire proceeds. It is from this portion of the decree that the appeal is taken. Appellants insist that the court erred in holding that the proceeds of the policy of the insured were a gift to the wife and became her separate property. It is their contention that the insured, having reserved the right to change the beneficiaries, and having provided in the policy that upon the death of both the wife and daughter the proceeds of the policy should be paid to his personal representatives, they thereupon became his separate property, to which, under section 1386, subd. 8, of the Civil Code, his father and mother were alone entitled to succeed. The respondent has done very little to aid the court on this appeal, other than to insist that the decree of the trial court should be sustained We are satisfied from an independent search of the authorities that neither party is right. [1] When a policy of insurance is taken upon the life of a husband during coverture, and premiums are paid from community funds, the policy is community property New York Life Insurance Co. v. Bank of Italy, 60 Cal. App. 602, 606, 214 P. 61. In determining the character of the property, the marital status of the parties at the time the contract of insurance was made, and not the status at the time of the death of the insured, is the condition which controls. Succession of Buddig, 108 La. 406, 32 So. 361; Succession of Le Blanc, 142 La. 27, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 76 So. 223, 225, L. R. A. 1917F, 1137. In the latter case it was said: "The beneficiary having died before any right had become vested in her, this mere expectan "Life insurance in favor of the estate, they died with her." executors, or administrators of the person insured forms a part of his estate at his death; and the status of the proceeds or avails of such life insurance-that is, whether it is community property or property of the separate estate of the insured-depends upon whether the contract of insurance was made during the marital community or when the insured was single." We do not find any departure from this rule except to the extent that it is qualified in N. Y. Life Ins. Co. v. Bank of Italy, 60 Cal. App. 602, 214 P. 61, wherein it was held that, where a policy of insurance had become community property, under the circumstances first herein discussed, the husband cannot, in view of the provisions of section 172 of the Civil Code, designate a third party as beneficiary to more than his community one-half of the proceeds, without the written consent of his wife, because to do so would constitute a gift of community property. But this, of course, does not apply to a gift from husband to wife. In New York Life Insurance Co. v. Bank of Italy, supra, reference was made to the rule of Louisiana as announced in the foregoing cases, although the language of the California case does not expressly adopt the rule as prevailing in this state. However, throughout the decision of the appellate court reference is made to the fact that the parties were husband and wife at the time the policy of insurance upon the life of the husband was executed, and it is a fair inference that the appellate court approved the Louisiana ruling. As we have not been cited to any authority to the contrary, we are satisfied, upon the authorities of the cases cited from Louisiana, and upon principle, that the status of the parties at the time the insur-erty of the parties during their coverture, ance contract was executed, or at least throughout the period of the payment of the premiums, is the controlling feature in the determination of whether the policy is community or separate property. [4] The situation presented to us is therefore that the policy of insurance in controversy constituted community property which the husband gave to his wife, with the qualification that, if she should predecease him, the proceeds of the policy should be paid to his estate. The policy of insurance being a chose in action which was community prop the proceeds of the policy would retain their community character, notwithstanding the fact that they were paid after the dissolution of the community. When, therefore, the husband designated his estate as beneficiary, in the event of the death of his wife, it will not be presumed that he intended to change the character of the property from community to separate property, but it will be assumed, in the absence of any showing to the contrary, that he merely intended to designate his general estate as the successor to the proceeds of the policy. It would follow from this that the proceeds under controversy were the community property of the husband and wife, which their respective [2] The rule upon which the appellants base their appeal is well settled in this state, but we do not believe it is applicable to the particular facts of this case. This rule is that, when a policy of insurance is taken upon the life of the husband during coverture, and the wife, her executors, administrators, or assigns are the beneficiaries named in the policy, the husband is presumed to have thereby made a gift to his wife of the policy, as well as of the entire proceeds thereof, and these become her sep-parents were entitled to receive, one-half to arate property. If in such a case the wife should predecease her husband, the proceeds of the policy upon the death of the husband go to the personal representatives of the wife as her separate property. This, however, is true, because the contract of insurance has not provided for the substitution of a new beneficiary upon the death of the wife. This rule is recognized in the case of Estate of Dobbel, 104 Cal. 432, 435, 38 P. 87, 43 Am. St. Rep. 123. [3] Where, however the contract of insurance expressly reserves the right to change beneficiaries it has been held that the interest of the designated beneficiary prior to the death of the insured is that of a mere expectancy of an incompleted gift. McEwen v. N. Y. Life Ins. Co., 23 Cal. App. 694, 139 P. 242; Supreme Council A. L. H. v. Gehrenbeck, 124 Cal. 43, 44, 56 P. 640; Simmons v. Miller, 171 Cal. 23, 26, 151 P. 545. In the each, in accordance with the terms of subdivision 8 of section 1386 of the Civil Code. Though we have said that it is apparent that this property should be treated as community property, the trial court found that the husband had made a gift of the policy to the wife, and for that reason the proceeds should be treated as the separate property of the wife. The error of the trial court arose from the failure of the parties to point out the distinction between a policy naming the personal representatives of the wife as her successors, in the event of her death before that of the insured, and a policy such as that in controversy which names the estate of the husband as the beneficiary under such circumstances. Though there is apparently no dispute as to the facts, a new finding should be made by the trial court to support a decree in accordance with the views expressed herein. 191 cating liquor was sold, kept, and bartered" in violation of law. He was convicted, and this appeal is from the judgment and the order denying his motion for a new trial. In the month of April, 1924, the defendant conducted a pool room at the place stated in the indictment. Adjoining his place of business was a building with a flat roof, the walls of the building extending 18 inches or more We concur: LANGDON, P. J.; STURTE- above the roof. This adjoining building was VANT, J. PEOPLE v. MILLER. (Cr. 809.) (District Court of Appeal, Third District, ifornia. Sept. 24, 1924.) unoccupied, except that church services were conducted therein at times. For convenience, this building will be referred to as the church. At the rear of defendant's place of business was a porch roof covered with tar paper. Cal-nished a convenient means of access to the The porch roof, when reached, furroof of the church. 1. Criminal law 1044, 1137(5)-State's witness' restatement of stricken matter held not reversible error, where no motion to strike, and defendant referred to same matter. Persistence of state's witness in restating that defendant conducted a bootleg business, and in referring to certain women inmates of defendant's establishment as prostitutes, after such matter had been once stricken by court, although improper, held not reversible error, where no motion to strike was made, and counsel for defendant referred to these women as prostitutes. 2. Criminal law 1035 (3)-Court's reprimand of spectator held not prejudicial error. Action of court in calling spectator before him and reprimanding him for making motions to jury held not prejudicial error, where such action was not assigned as misconduct, nor request made that jury be instructed to disregard it. William Glynn, a federal prohibition enforcement officer, testified that on the 15th, 16th, and 17th days of April, 1924, he purchased intoxicating liquor from defendant at his place of business; that on the 15th the defendant, by means of a ladder, got a bottle of gin from the roof of the church and served the witness with a drink therefrom; that during these three days the defendant served intoxicating liquor to many other persons; that the defendant said he had as good whisky as there was in Oroville and that he for which he paid $18 a gallon; that there was the only man in town who handled gin, were three women in the defendant's place of business for whom the witness purchased drinks. T. Kaare, a private detective, employed by the district attorney, testified that on the 13th of April, 1924, he saw "8 or 10" persons drinking intoxicating liquor in defendant's place of business; that he was pres 3. Criminal law 811(6), 1172(1)-Instruc-ent with Glynn and saw him purchase intion as to accused's testimony held not revers ible error. Instruction that jury are sole judges of credibility of accused's testimony the same as that of any other witness, although improper as singling out testimony of defendant, held not reversible error. 4. Criminal law 941 (1)-Denial of new trial, where evidence merely cumulative, held not error. Denial of new trial for newly discovered evidence held not error, where it was merely cumulative. toxicating liquors, as testified by him, and saw others there buying drinks; that at all times there were women there soliciting the detectives to buy them drinks; and that at one time he saw the defendant take a bottle of liquor from under the counter and at another time from a bedroom near the counter. The sheriff of Butte county and the constable of Oroville township testified that they raided the defendant's place of business on the 19th of April and found six gallon jugs of liquor in a box on the church roof, inside of the wall, and that there was a well-defined trail Appeal from Superior Court, Butte Coun- over defendant's porch roof to the box conty; H. D. Gregory, Judge. taining the jugs of liquor. The liquor con George A. Miller was convicted of main-tained more than 50 per cent. of alcohol by taining a place where intoxicating liquor was sold, and he appeals. Affirmed. W. E. Davies, of Marysville, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People. FINCH, P. J. In appropriate language the indictment charges the defendant with the offense of maintaining “a place where intoxi volume. The defendant testified that he had never seen either of the detectives at his he had never kept intoxicating liquor there, place of business or sold them liquor; that and that he did not know of there being any liquor on the church roof. No other witness testified for the defense. [1] When asked to describe the defendant's place of business, the witness Glynn replied that it was "conducted in the front portion as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a pool room, and in the back room as a bootleg, prostitution, and gambling affair." On motion of counsel for defendant the court * * brings before the court a colored man from the audience.) "The Court (to the colored man): Why in the presence of this jury when Mr. Chubbuck didn't you quit making motions with your head motioned to you? A. I didn't do it. I didn't see Mr. Chubbuck looking at me. "The Court: You are in contempt of this court. (To the sheriff:) Hold him in the sher*iff's office until I get ready for him." struck out the statement "that it was a "Q. Who were they? A. I don't know. They were soliciting prostitution, that is all I know. "Q. They were around there soliciting prostitution from you? A. Yes, sir. * * "Q. What did the prostitutes do with theirs (their liquor)? A. They drank it." It is urged that the foregoing constituted prejudicial misconduct on the part of the court. Counsel for defendant did not assign the same as misconduct or request the court to instruct the jury to disregard it. Neither does the record show that there was any misconduct on the part of the court. When any spectator at a trial is willfully guilty of conduct tending to or intended to influence the jury it is the duty of the court to administer prompt and effective punishment. [3] It is contended that the court erred in giving the following instruction: "You are not to disregard the defendant's testimony merely because he is the defendant. his testimony the same as you are that of any But you are the sole judges of the credibility of other witness." While the instruction is an accurate statement of the law, it has often been declared improper to single out the testimony of the defendant and instruct with particular ref for reversal. People v. Passafiume, 59 Cal. App. 283, 210 P. 544; People v. Fritz, 54 Cal. App. 137, 201 P. 348. The court was not asked to strike out the objectionable language used by the witness, but counsel for defendant, as appears from the foregoing, referred to these women as prostitutes. While the persistence of the witness in restating matters which had been stricken out would have justified the court in punishing him for contempt, it does not appear that the defendant suffered any prejudice from the conduct of the witness. Mani-erence thereto, though not sufficient ground fest bias of a witness and his zeal to aid one party usually discredits him in the eyes of the jury. If the testimony of witnesses for the prosecution is true, it necessarily follows that the defendant was conducting a "bootleg" business, and its characterization as such by a witness, though improper as a mere conclusion, was not prejudicial. Since the evidence shows that the women in question were present in such "bootleg" place at all the visits of the detectives, soliciting the latter, who were strangers, to buy them intoxicating drinks, the jury naturally must have placed a low estimate upon their characters, and it is improbable that any juror was influenced by Glynn's characterization of them. The witness Glynn stated that a dice game was in progress at one time when he visited defendant's place, but the court promptly struck out the testimony and instructed the jury to disregard it. [4] On the hearing of defendant's motion for a new trial, he introduced affidavits to the effect that he left Oroville between the hours of 10 o'clock and 10:30 a. m. on the 17th of April, 1924, and did not return until the 18th. At the trial the defendant testified that he left Oroville about 10:30 a. m. on the 16th of April and did not return until the evening of the 18th. It thus appears that the newly discovered evidence is merely cumulative. Counsel for appellant has failed to point out any testimony produced by the prosecution which the facts stated in the affidavits tend to contradict. There certainly was no abuse of discretion in the denial of a new trial. Appellant has assigned more than a score of alleged errors. It would unduly lengthen [2] Glynn was asked if any one but defend- this opinion to discuss them all specifically. ant was at the latter's place of business on a From a careful examination of the record it specified occasion. Glynn replied: "Yes sir, is manifest that none of the errors comthere is a man sitting back there, a colored plained of are prejudicial. The case made man, that is all that was in there," indicating against the defendant is very strong. There a colored man in the courtroom. After a is nothing in the record upon which to base a few more questions had been asked and an- conclusion that there has been a miscarriage swered, the following occurred: of justice. "The Court (interrupting): Just a moment. Bring that man forward here (indicating man | The judgment and the order are affirmed. |