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erally extended to administrators a similar | 148 [Gil, 113]; In re Thurber's Estate, 162 consideration, and they have manifested a reluctance to remove them unless compelled to do so. It is thus expressed in 18 Cyc. 165: "The courts are reluctant to remove an executor or administrator where no strong cause exists therefor, and it does not clearly appear that retaining the representative in office will jeopardize the interests of the estate." In Haines v. Carpenter, 1 Woods, 262, Fed. Cas. No. 5,905, it is said: "A strong case must be made out to induce the court to take possession of the property from an executor who has qualified and given bond for the faithful discharge of his trust and has taken possession under the will." And the Supreme Court of this state has said in the Estate of Graber, 111 Cal. 434, 44 Pac. 165, that "to revoke or forfeit letters testamentary or of administration, ipso facto, by a statute, is most rigorous treatment and we would not be inclined so to construe the law, unless the intention of the lawmaking power to that effect was plainly manifest." We must assume that the Legislature had before it this policy of the law when it enacted the statute in controversy.

N. Y. 244, 56 N. E. 631; Stone v. Pratt, 90 Hun, 39, 35 N. Y. Supp. 519; First Nat. Bank of Seneca v. Lyman, 59 Kan. 410, 53 Pac. 125; Cook v. Spears, 2 Cal. 409, 56 Am. Dec. 348: People v. Sanitary Dist. of Chicago, 184 III. 597, 56 N. E. 953). In Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095, the Supreme Court of Washington had before it a statute quite similar to the one involved herein, and the decision is directly in point. There section 6201 of the statute provided that "every executor and administrator shall make and return, upon oath, into the court, within one month after his appointment, a true inventory of the real and personal estate of the deceased which shall come into his possession or knowledge," and section 6208 provided that "if any executor or administrator shall neglect or refuse to return an inventory within the time prescribed, or within such further time, not exceeding three months, as the court shall allow, the court shall revoke the letters testamentary or of administration." As stated by appellant, the inventory was not returned within the statutory period, nor was the period extended by the court. It was insisted that the statute was mandatory, it being expressed in mandatory terms, "the court shall revoke," and it was urged by petitioner that the court had no discretion where the executor failed to file the inventory within the statutory time. The court in discussing this claim said: “No such statutory provision in the same terms has been brought to our attention, but it is a familiar rule of construction that the spirit as well as the letter must be considered in determining whether its provisions are mandatory or directory. The words 'may' and

[4] And, while the language upon its face seems to be mandatory, the cardinal canon of interpretation requires, of course, that we give effect to the intention of the lawmakers, though it may seem opposed to the letter of the statute. This is well expressed by Judge Thayer in Chauncey v. Dyke Bros., 119 Fed. 9, 55 C. C. A. 587, as follows: "We are aware that some courts have at times expressed in strong terms the necessity of pleading and enforcing statutes literally without regard to consequences. Some of these utterances have been called to our attention. But this doctrine of literalism which clings to the let-'shall' may be used according to the context ter of a statute and ignores its purpose is not well calculated to promote the ends of justice. It is not the duty of a court of justice to perpetuate mistakes inadvertently made by the lawmaker by a blind adherence to the letter of the law, when the purpose of the law is apparent. Legislative bodies are not always fortunate in the use of language, but, if careful attention is paid to all. the provisions of a statute as well as to the conditions which led to its enactment, little difficulty will generally be experienced in ascertaining what was intended. When the purpose is disclosed, it should be given effect, since whatever is within the intention of the lawmaker is as much within the statute as if it was within the letter."

[5] In accordance with this primary rule of interpretation, courts have constructed "may" as mandatory, giving it the meaning of "shall" or "must" (Estate of Ballentine, 45 Cal. 699; Hayes v. County of Los Angeles, 99 Cal. 74, 33 Pac. 766; Sutherland on Statutory Construction, 634); and in many cases it is held that "shall" and "must" are directory merely (Wallace v. Feeley, 61 How.

and intent found in the statute and are fre quently construed interchangeably. From the reading of these two sections in connection with the received construction and nature of probate proceedings and the ordinary discretion of the superior court in such proceedings, it is concluded that the authority of the superior court to remove an executor in this case rests in a sound legal discretion. Considering that the failure of the executor to formally file the inventory was through mere inadvertence and forgetfulness and the further fact that he was the trustee selected by the testator and otherwise competent to manage the estate, no abuse of discretion is perceived in the court's rulings."

Again, the term "neglects" indicates very clearly that the court is clothed with some discretion. It is not the "omission" or "failure" to publish the notice that demands the removal of the executor or administrator, but if he "neglects for two months after his ap pointment," etc., the court must revoke his letters. Here also the Legislature must have had in mind the well-established significance of the expression. "To neglect' and 'to

be an omission to perform an act or condition | the court below held it was a case of excuswhich is altogether involuntary and inevi- able neglect and therein was sustained by the table. To neglect is to omit by carelessness or design." New York Guaranty & Indemnity Co. v. Gleason, 53 How. Prac. (N. Y.) 122.

Supreme Court; it being said: "The fact that such revocation can only take place after notice is a clear indication that the executor or administrator is to be given an opportunity to come before the court and show cause why his letters should not be revoked. Whether the cause shown be good or bad is a matter largely within the discretion of the trial court, and, when that court has investigated the question and adjudicated upon it, it will only be when a gross abuse of discretion has occurred that the court will interfere." So in Hubbard v. Smith, 45 Ala. 516, where the administrator had failed to return an inventory in the time required by law, the court said: "He ought to have filed an

The Penal Code of this state (section 7, subd. 2) also provides that "the term 'neglect' imports a want of such attention to the nature or probable consequences of the act or omission as a. prudent man ordinarily bestows in acting in his own concerns." In this light the provision must be viewed. The section is the same as though it had provided that if the executor or administrator fails to publish the notice for two months, and his failure is the result of carelessness or design, the court must revoke his letters. Under the view of respondent, if the executor had been prevented by some unavoidable circumstanc-inventory, as any other administrator is rees from making the publication, the result quired to do, and to have made annual settlewould be the same, since the court has no dis- ments, but the mere omission to do so when cretion. We think no such drastic penalty he was not negligent and there has been no was contemplated by the Legislature. Of detriment to the estate is not ground for recourse, it is plainly the duty of the executor versal." Indeed, the cases are numerous to make the publication within the statutory where there has been a technical violation of time. He is commanded to do so, and he the law, and yet where the delinquent has should endeavor to comply with the direction | been relieved of the penalty on account of inof the law. The statute does not complacent- advertence, surprise, or excusable neglect. ly leave it to the discretion of the executor as to the time when this notice shall be published, but its language is imperative as to the time, and, if he fails, he must satisfactorily excuse his omission or else his letters will be revoked. It may be said also that he is commanded to file his inventory within a certain time. Section 1443 of the Code of Civil Procedure provides that "every executor or administrator must make and return to the court within three months after his appointment, a true inventory and appraisement of all the estate of the deceased." Yet if he fails to do so, and has a sufficient excuse, the court will overlook his default. In re Graber, supra. In the admission by respondent that under circumstances rendering it impossible for the executor to give the notice within the prescribed limit his letters should not be revoked, there is, indeed, virtually a concession that the court is vested with some degree of discretion in the premises.

[7] As to the degree of care required of an administrator or executor, the authorities are uniform that he must act with such prudence and diligence as are generally observed by prudent men of intelligence and discretion in regard to their own affairs."

[8] The executor here honestly endeavored to have the notice published. He intrusted the matter to his attorney, which is the course ordinarily pursued, and which, we may assume, usually results in a compliance with the law. He had every reason to believe and did believe that the notice had been published. It is true that he was a subscriber to the paper in which he directed the notice to be published, and it may be a little peculiar that he did not examine the paper for the notice, but he had no reason to suspect that the direction of his attorney would not be carried out. There was no designing neglect, but an oversight on the part of the stenographer, regrettable, but scarcely of sufficient gravity to authorize the removal of the exec

24 Pac. 944, it is said: "While it is the duty of courts to protect carefully the interests of estates, the rights of those who are appointed to take charge of and manage them should not be overlooked, and an administrator should not be removed except for good and sufficient cause." In Heisler v. Sharp, 44 N. J. Eq. 167, 14 Atl. 624, it is said that: "No man is infallible. The wisest make mistakes; but the law holds no man responsible for the consequences of his mistakes which are the result of imperfection of human judgment and do not proceed from fraud, gross carelessness, or indifference to duty."

[6] Should this discretion have been exercised in favor of the executor? It is contend-utor. In the Estate of Welch, 86 Cal. 183, ed by respondent that his violation of the statutory duty per se rendered the executor guilty of negligence, and therefore the decision of the lower court could not have been otherwise. But respondent insists upon a conclusive presumption where only a disputable presumption exists. The rule in such cases is that, where it appears that a party has failed to perform a duty imposed by the law, the burden is cast upon him to excuse his conduct in order to relieve himself from the penalty. He would be required to overcome the prima facie case presented by the omission to do what the statute requires. In the Graber Case, supra, the respondent had not obeyed the mandate of the law, and yet

There is also the other consideration of some moment that the forfeiture of an office

sued for had all been bought from plaintiff by Mr. Reeder acting for the defendant; that the lumber had been delivered from time to time as ordered by Mr. Reeder, and receipts given therefor. The lumber was delivered at the various jobs as ordered by Reeder. Some of it also was delivered to the Pacific Lumber Company to be cut up in accordance with the orders of defendant, and

is involved, and the rule is that such provi- | jobs." The plaintiff proved that the lumber sions must be strictly construed, and forfeiture is not favored. It is so stated in People v. Perry, 79 Cal. 105, 21 Pac. 423, in this language: "Provisions for forfeiture of vested rights, whether in statutes or contracts, are not favored, and are, as they ought to be, construed as strictly or as liberally as possible against the forfeiture." The burden is upon the party claiming a forfeiture to show that such was the intention of the in-two loads were delivered at a house in Berkestrument. [9] If the agreement or statute can be reasonably interpreted so as to avoid a forfeiture, it should be so construed. Quatman v. McCray, 128 Cal. 285, 60 Pac. 855.

ley, which belonged to Mr. Reeder, but which plaintiff did not know was not being constructed by appellant for Mr. Reeder. After the lumber had been delivered to Reeder's house, however, Reeder himself paid to plain

ited on appellant's bill, leaving the amount sued for as the balance unpaid.

Under all the circumstances disclosed, we do not think the court was justified in re-tiff on account thereof $31.97, which was credvoking the letters of Mr. Chadbourne for an honest mistake which was not the result of gross carelessness and which was not productive of any positive injury to the estate. The order is reversed.

Appellant, on its own behalf, placed Mr. Reeder on the witness stand, and he also testified to the purchase and delivery of the lumber, and that plaintiff's account was in

We concur: CHIPMAN, P. J.; HART, J. all respects correct; that the several jobs be

(15 Cal. App. 407)

EAST SHORE LUMBER CO. v. HEALY-
TIBBITTS CONST. CO. (Civ. 862.)
(Court of Appeal, First District, California.
Feb. 15, 1911.)

ing done by defendant at the time were a concrete building at the foot of Fifth avenue for the Western Power Company, a pumping plant for the city of Oakland, a fire engine house for the city of Oakland, and a building for the Western Pacific Company. He further testified that he received all the lumber for the defendant called for by the bills of plaintiff, and that it went into the various A contractor, sued for the price of mate- jobs, including, however, his own house, but rial bought for several buildings, could not that he had paid $31.97 to plaintiff on acshow how much material was required for one of the buildings, without showing what ma- count of the lumber used in his residence. terial went into the other buildings, since such and had the same credited to defendant's acevidence in no way tended to contradict plain-count, and, in addition, had paid appellant

SALES (358*) - ACTION FOR PRICE-EVI-
DENCE-ADMISSIBILITY.

tiff's case.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 358.*]

Appeal from Superior Court, Alameda County; T. W. Harris, Judge.

Action by the East Shore Lumber Company against the Healy-Tibbitts Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

on account of the material that went into his house $212, which he testified was largely in excess of the value of such materials.

Appellant then called one Horton, its secthe plans and specifications for the building retary, who testified that he had examined appellant was erecting at the foot of Fifth

avenue. He was then asked: "How much lumber would be required in said building

Alex. G. Eells and H. K. Eells, for appel- as shown by the plans and specifications?" lant. C. L. Colvin, for respondent.

Objection was made to the question and sustained. He then testified that the work beHALL, J. Plaintiff brought suit to re- ing done by appellant on said building was cover the sum of $1,626.89 for lumber sold the concrete work, and that the lumber and delivered to defendant by plaintiff, and bought was for the forms to hold the conrecovered judgment for the full amount pray-crete, and that after completion he measured ed for. Defendant appealed to this court from the judgment, and the only points urged for a reversal arise out of the rulings of the court in sustaining objections to two questions asked by appellant of each of two witnesses called by appellant.

the building on the ground to ascertain the amount of lumber it would require to make the forms. He was then asked: "How much lumber would it require?" Objection was made and sustained.

Similar questions were asked of another witness by appellant, and objections made and sustained. It is the rulings upon these questions that are now claimed to be erroneous.

The evidence shows without conflict that the defendant was engaged upon four building jobs in Oakland, and that one Reeder was its foreman and building superintendent, and. to quote from the appellant's brief, "had au- We are unable to discover any error in thority to order lumber for these various the rulings. No matter what answer might

Where a defendant has twice been convicted

of manslaughter, and the trial court has shown
his belief in the defendant's guilt by imposing
the maximum penalty, the appellate court will
be reluctant to reverse for failure of proof.
Cent. Dig. §8 699-704; Dec. Dig. § 332.*]

[Ed. Note.-For other cases, see Homicide,

have been given, such answers could not 15. HICIDE (§ 332*) — APPEAL REVIEW VERDICTS. have tended to disprove the case made by plaintiff and the testimony of defendant's own witness Reeder. The questions were directed only to the lumber used in one building, and no other evidence was offered tending in any way to contradict the evidence given in support of plaintiff's case, and no effort was made to show what lumber went into the other jobs. Lumber had been furnished for five jobs; for, besides the four jobs being done by appellant, lumber had been furnished for the Reeder house in Berkeley, for which appellant had accepted payment from Reeder, and had thus ratified his act in buying the same upon their account. The record before us does not show what amount of lumber was charged to the building at the foot of Fifth avenue, or, indeed, that any of the lumber was charged to any particular job. The evidence in the record simply shows that the total amount sued for was sold and delivered as ordered by Reeder, and the fragmentary evidence offered would not have thrown any light upon the question

6. CRIMINAL LAW (§ 829*)-INSTRUCTIONSREPETITION.

Instructions covered by instructions already given are properly refused.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 7. HOMICIDE (§ 7*)—MOTIVE.

at issue.

The judgment is affirmed.

Motive is not indispensable to a conviction of homicide.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 12; Dec. Dig. § 7.*] 8. CRIMINAL LAW (§§ 763, 764*) - INSTRUCTIONS-INVADING PROVINCE OF JURY.

question of motive becomes important, if not controlling, as showing the cogency of the circumstances, and that it is necessary that the facts from which the motive be implied be proved, is an invasion of the province of the jury under Const. art. 6, § 19, providing that judges shall not charge juries on matters of

An instruction in a homicide case that the

fact.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. $$ 763, 764;* Homicide, Cent. Dig. §§ 579, 603,

We concur: LENNON, P. J.; KERRIGAN, J. 631, 648.]

(15 Cal. App. 416)

PEOPLE v. MUHLY.

(Cr. 137.)

(Court of Appeal, Third District, California. Feb. 16, 1911.)

Appeal from Superior Court, Madera County; W. M. Conley, Judge.

T. H. Muhly was convicted of manslaughter, and appeals. Affirmed.

See, also, 11 Cal. App. 129, 104 Pac. 466. Frank Kauke and Ernest Klette, for appelU. S. Webb, Atty. Gen., and J. Chas. Jones, for the People.

1. CRIMINAL LAW (§ 784*)-TRIAL-INSTRUC-lant. TIONS-CIRCUMSTANTIAL EVIDENCE.

Where the evidence is circumstantial, it is proper to instruct that the evidence must not only be consistent with the hypothesis of guilt, but inconsistent with every other rational hypothesis.

QUES

CHIPMAN, P. J.

Defendant was charged with the murder of one James H. Bethel, alleged to have been committed on or about February 28, 1908, at the county of Madera.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888; Dec. Dig. The jury found him guilty of manslaughter 784.*] and recommended him to the mercy of the 2. CRIMINAL LAW (§ 741*) — TRIAL court. The sentence of the court was 10 TIONS FOR JURY. DeWhere the circumstances justify a reason-years imprisonment at San Quentin. able inference of guilt, the question is for the fendant appeals from the judgment of conjury, though an inference of innocence might be viction and from the order denying his modrawn. tion for a new trial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1716, 1717, 1727, 1728; Dec. Dig. § 741.*]

1. The principal point upon which a reversal is asked is that the evidence was in

3. CRIMINAL LAW (§ 1159*)—APPEAL AND ER-Sufficient to justify the verdict. At a former ROR-VERDICTS.

A verdict in a criminal case based on circumstantial evidence carries the same presumption of correctness on appeal as other verdicts, and will not be reversed, unless wholly unwarranted by the evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]

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trial the defendant was convicted of manslaughter. On appeal the judgment was reversed. 11 Cal. App. 129, 104 Pac. 466. At the last trial the court properly instructed the jury that, if they believed from the evidence beyond a reasonable doubt that the defendant was guilty as charged, they must find him guilty of manslaughter. The defendant may deem himself fortunate, if by their verdict rendered impossible his conguilty, that at his first conviction the jury viction upon a subsequent trial of the higher crime, for the evidence tended to show a bru

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

tal murder by some one, with no accompany- [ conducive to impartial action by the jury, ing circumstances pointing to any less crime but ordinarily it tends to just inferences than murder. While it is concededly true and conclusions from the evidence adduced, that the homicide, as viewed from the evi- and unless it otherwise appears it must be dence was murder, it is strongly urged that presumed that such inferences and concluthe evidence fails to connect the defendant sions were fairly deducible from the circumwith it. stances disclosed. Take some of the circumstances shown in this case; for example, the conduct and demeanor of the accused at the coroner's inquest and afterwards, conscious of resting under suspicion; or consider the fact of defendant's opportunity to commit the crime; or that he was the owner of the gun which probably was used in killing the deceased; or that the defendant made some ap

[1] The evidence of defendant's guilt is circumstantial. Reliance is placed upon the rule stated in People v. Staples, 149 Cal. 405, 425, 86 Pac. 886, 894. We quote: "Where the evidence is of such a character (circumstantial), it must be not only consistent with the hypothesis of guilt, but inconsistent with any other rational hypothesis. The deduction to be drawn from these circumstances is ordi-parently hostile declaration about the denarily one for the jury, but where, in a case such as this, every circumstance relied on as incriminating is equally compatible with innocence, there is a failure of proof necessary to sustain a conviction, and the question presented is one of law for the court." This statement of the rule suggests a very serious question, arising under the constitutional provision which makes the jury the exclusive judges of the facts. Where there is a series of circumstances from which, as is claimed here, guilt is made to appear, is it not the province of the jury to determine whether or not "every circumstance relied on as incriminating is equally compatible with innocence"? Under what condition in a particular case may the court assume the functions of the jury and determine that each of the numerous circumstances relied on as incriminating is, or that all of them taken together are, equally compatible with innocence, and therefore the verdict is not sustained? In the case now here the defendant presents in numerical order most, if not all, of the circumstances relied on for conviction, and endeavors to show each of these circumstances to be equally compatible with innocence, and hence there is a failure of proof necessary to sustain a conviction. The principle enunciated in the Staples Case is undoubtedly proper to be given as an instruction to the jury, and it was given by the learned trial court in unmistakable terms.

[2] But we do not think it can be accepted, or was intended to be accepted, as a rule of universal application to guide the appellate court in all cases arising out of or dependent upon circumstantial evidence. It rarely happens that circumstances attending the commission of a crime may not, in the opinion of the reviewing court, reasonably be susceptible of an interpretation compatible with the innocence of the person associated with such circumstances; and, if one after another of the alleged incriminatory circumstances may be eliminated, they would necessarily cease to have any probative force considered collectively.

There is always an atmosphere around the circumstances of every case as it is being presented to the jury which is dissipated by

ceased some time previous to his death; or that defendant knew of the homicide shortly after it occurred, to wit, about 8 o'clock in the evening, and did not inform his neighbors of the fact until the next morning, but left the body lying on the ground unprotected during a very stormy night-each of these circumstances may be reconciled with innocence. But are not the jury the judges of the inferences to be reasonably drawn from the circumstances? As we understand the Staples Case, the rule there laid down followed an analysis of the evidence from which the court was authorized to conclude that there was no evidence warranting the verdict. We do not understand that case to hold that, where the circumstances are such as to reasonably justify the inference of guilt, the case will be taken from the jury because an inference of innocence might also reasonably have been drawn. Between these two inferences the jury must choose. and it is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. This must be so, or the weight of the circumstantial evidence, and the inferences to be drawn from it in almost every case, must finally be determined by the appellate court, thus making the court the arbiter of both law and fact.

[3] In our judgment a verdict of a jury, and the judgment of conviction based upon circumstantial evidence, come to us as any other verdict and judgment, clothed with like presumption of support; and, unless we can say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere.

[4] It appears from the evidence that deceased was an old man, unmarried, aged 75 years; he boarded with defendant, who with his wife and children lived in a house about 175 feet from a roadside house in which deceased lodged and kept a saloon and some articles of merchandise. On the evening of February 28, 1908, deceased took supper with defendant's family at about 7 or 7:30 o'clock and went thence to his saloon; a few minutes later, and while defendant was helping in the kitchen, defendant heard a shot. All we know of what happened we learn from wit

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