pay for the material and labor on said build- were very unfortunate in the use of terms. ing concludes as follows: "Therefore, I hereby assign, convey and set over unto the said B. F. Lynip the sum of four thousand dollars, out of the twenty-five per cent. of said contract price, to be paid to me under said contract after the completion and acceptance of said building as aforesaid, and hereby authorize the said board of trustees to pay said sum out of said twenty-five per cent. to said B. F. Lynip instead of to me, to to accept his receipt therefor in all respects as though said receipt was signed by me, hereby authorizing the said B. F. Lynip to receive and receipt for said sum of four thousand dollars out of said twenty-five per cent. of said contract price, in my place and stead." [5] An assignment almost identical in form and between the same parties, involving the sum of $430, executed November 6, 1911, nearly two weeks prior to the one before us, was thoroughly considered by this court in the case of Lynip v. Alturas School District, 24 Cal. App. 426, 141 Pac. 835. We may refer to said decision for a declaration of the facts connected with, and of the principle that must control in the interpretation of, the assignment herein. Therein it was held that the assignment operated— "solely upon the fund to become due and payable only upon the completion of the building, not upon moneys becoming due and payable as the work progresses; and, if the contractor abandons the contract before completion, the trustees are not liable to the assignee for the amount of the assignment, under their indorse ment thereon recognizing the assignment and reciting an agreement to pay the sum named 'out of the payment' to be made 'at the time of completion and acceptance of said building.' [6] There was in this case a similar indorsement made by the trustees, but there is this additional feature not found in the Lynip Case, supra: Two days after said assignment was made it was again presented to the trustees of said district and it then had attached to it a second page, containing the following guaranty: "We, the undersigned, in consideration of B. F. Lynip advancing to A. E. Pearson, the amount named in the assignment thereto attach ed, to wit, the sum of four thousand dollars, for the purpose of paying for the labor performed, and the material furnished and used in the school building now being constructed by the said A. E. Pearson for the Alturas school district of Modoc county, California, do hereby guarantee that the said sum of $4,000.00 so advanced by the said B. F. Lynip to the said A. E. Pearson, as aforesaid, shall be repaid to the said B. F. Lynip upon the completion of the said school building, out of the 25 per cent. of the contract price of said building, held back until the completion of said building." On the same or the following day this was signed by two of the trustees, E. F. Auble and S. T. Ballard, and a day or two later by the other trustee, L. S. Smith. It is by virtue of this guaranty that plaintiff sought to recover, contending that it was a guaranty of the original obligation-in other words, a guarantee that the debt would be paid. If such had been the intention of the parties, however, how easy to have so The only reasonable construction of the instrument, it seems to us, embodies the conclusion that the trustees would recognize Lynip as being entitled to the last payment rather than Pearson. This necessarily implied that there would be a last payment due. They guaranteed, in the other words, that the money should be repaid to Lynip out of a certain fund, to wit, "the 25 per cent. of the contract price of said building, held back until the completion of the building." There never was any such fund, since Pearson abandoned the contract and the contract price was exhausted in the completion of the building by the trustees. It is to be observed that the trustees did not guarantee that Pearson would complete the building or that the 25 per cent. would be due him when the building was completed, but the guaranty was virtually that effect would be given to the assignment, to which, it may be repeated, it was attached, and to which it refers, and of which it was made an inseparable part. This assignment was not the original obligation of the trustees nor of Pearson, but was collateral, as a form of security. The original obligations was in the form of a promissory note signed by Pearson alone, and to secure its payment he made the assignment and the defendants guaranteed that they would recognize its operation in the distribution of said 25 per cent. fund. It is true that this construction probably deprives said guaranty of any legal value. The trustees had already indorsed on said assignment their acceptance, and they were thereby obligated to pay said fund to Lynip; but whatever may be the effect of said guaranty, the guarantors have a right to stand upon its terms. The fact is, apparently, that the trustees, as individuals, guaranteed that they, as trustees of the district, would recognize Pearson's assignment and pay the money to his assignee instead of to him. But there was no default on the part of the trustees. They were not called upon to pay the money, since the obligation never matured. As far as the guaranty is concerned, the trustees, as such, were the principals and they, as individuals, were guarantors. There having been no default on the part of the principals, it would follow that the guarantors were exonerated from liability. Several cases are cited by respondent in support of his contention, but it will be observed that therein the liability of the guarantors was not limited as in the case before us. Bagley v. Cohen, 121 Cal. 604, 53 Pa. 1117, may be taken as an example. The contract was: "On or before sixty days I, E. H. Gould, do hereby agree to pay to F. S. Bagley or order, out of the profits realized by me from my business of packing raisins at Malaga, during the present season, the sum of three hundred and ten dollars in gold coin of the United States of 112 (Cal. Prior to the delivery of this contract and 13. EMBEZZLEMENT 44-EMBEZZLEMENT BY as a part of the same transaction, the defendant subscribed the following guaranty, which EXECUTOR EVIDENCE. was written beneath the contract: "I, E. A. Cohen, do hereby guarantee the payment of the foregoing note in accordance with the conditions thereof." Within ten days after the execution of the foregoing instrument Gould sold and conveyed all his right, title, and interest in and to his business of packing raisins at Malaga, and thereby prevented himself from realizing any profits out of said business. It was properly said by the Supreme Court that: "The contract of the defendants being a part of the same transaction with the contract of Gould, the two instruments make but a single contract on their part. Hazeltine v. Larco, 7 Cal. 32. Their guaranty that Gould would perform his contract was an original undertaking by them, and their liability as guarantors is commensurate with that of Gould. Civil Code, § 2808. Their promise that he would perform his contract in accordance with the conditions thereof made them absolutely liable for his failure to perform it when he should be so liable. Otis v. Haseltine, 27 Cal. 80." The defendants therein, as seen, guaranteed the performance of Gould's contract and hence they were of course liable when he defaulted. The defendants here made no such guaranty of Pearson's performance, but guaranteed a payment in accordance with the terms of their contract with Pearson. The latter having defaulted released them and also the guarantors. That an executor charged with embezzling a legacy reported in one or more of his reports that the same was actually on hand at the time that the money was on hand was not conclusive of such reports, but the jury could find that the legacy had been converted to his own use prior thereto. ment, Cent. Dig. §§ 67-70; Dec. Dig. 44.] EXECUTOR-EVIDENCE-ADMISSIBILITY. On the trial of an executor for embezzling a legacy based on his refusal to pay the same to the legatee as ordered by decree of partial was admissible in evidence to show a demand distribution, the decree of partial distribution of payment and a refusal, though the decree required payment within less time than that allowed for an appeal, where the executor did not appeal in his capacity as legatee individually affected by the decree. ment, Cent. Dig. §§ 61, 65, 66; Dec. Dig. signed by the local attorney of an infant legatee. We think the order and judgment should and Administrators, Cent. Dig. 88 1298–1314; [Ed. Note.-For other cases, see Executors be reversed, and it is so ordered. Dec. Dig. 315.] We concur: CHIPMAN, P. J.; HART, J. PEOPLE v. DATES. (Cr. 602.) (District Court of Appeal, First District, Cal- 1. CRIMINAL LAW 564-VENUE-EVIDENCE The contention that on the trial of an executor for embezzlement for failure to pay a legacy as ordered by a decree of partial distribution the venue was not proved, because accused was in another county between the date of the decree and the date of an attachment of accused, and because after the attachment and until the indictment accused was in the custody of the sheriff of the county in which the indictment was found, is tainable, because accused could have drawn an not susorder while in custody for the funds and converted the same to his own use. [Ed. Note. For other cases, Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. see Criminal 564.] 2. EMBEZZLEMENT 8 EMBEZZLEMENT BY EXECUTORS-OWNERSHIP OF LEGACY. An executor may embezzle a legacy before decree directing payment to the legatee; for an order of payment is not the inception of the title of the legatee, but title vests, under Civ. Code, § 1341, in the legatee at testator's death. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 6; Dec. Dig. S.] Appeal from Superior Court, Marin County; Emmet Seawell, Judge. Edward M. Dates was convicted of embezzlement, and he appeals. Affirmed. Walter J. Thompson, and H. F. Marshall, both of San Francisco, for appellant. U. S. Webb, Atty. Gen., and Frank L. Guerena, Deputy Atty. Gen., for the People. judgment of conviction of the defendant unRICHARDS, J. This is an appeal from a der indictment and conviction for embezzlement and from an order denying a new trial. The facts, which in the main are undisputed, are as follows: The defendant was the husband of Bessie S. Dates, deceased, and the stepfather of Mildred Jane Porter, the complaining witness before the grand jury. The wife of the defendant died in February, 1912, leaving a will, of which the dethe time of the indictment. fendant became and was the executor up to The estate of the deceased amounted in value to $64,804.40, of which the sum of $43,654.89 was net cash in the hands of the executor. By said will the defendant was bequeathed an undivided one-half of the estate, while to her daughter, Mildred Jane Porter, the deceased left a legacy of $25,000 in money. There were also certain other minor legacies aggregating the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes properly laid in Monterey county had the defendant committed the offense while there, still we see no difficulty in the way of his having been able to accomplish the criminal conversion of this money during the time when he was in the custody of the sheriff in Marin county. He could easily have drawn a check or order on the actual custodian of the funds if they were then intact, and have thus diverted them to his own use. [2] The second premise of the appellant is equally untenable wherein he argues that the earliest date at which he could have committed the offense was June 12, 1914, the date of the decree of partial distribution. It is appellant's contention that the title of Mildred Jane Porter to this legacy takes its inception in this decree; but this is not the law of this state. According to the terms of section 1341 of the Civil Code: sum of $5,000. This will was duly offered that the venue of the crime would have been and admitted to probate, and the defendant was appointed executor without bonds. The first annual account of the executor was filed in September, 1913, and showed the above net cash balance in his hands after all claims had been presented and paid. On April 13, 1914, a petition for partial distribution was filed. It purported to be signed by Mildred Jane Porter, but it is conceded that her signature to said petition was written by the local attorney who assumed to act for her in preparing and presenting the pe tition. At the time this petition was filed Mildred Jane Porter was in the state of Wisconsin, and was a minor just under the age of 18 years. Notice of hearing thereon was served upon the attorney of record of the defendant, and shortly thereafter a resistance to the petition signed by the defendant was presented and filed. A hearing was had on June 12, 1914, and thereupon the court made an order or decree of partial distribution, by the terms of which the defendant was directed to pay to Mildred Jane Porter on or about the 16th day of June, 1914, the sum of $25,000, the full amount of her legacy. On June 19, 1914, the defendant having failed and refused to comply with this order, an attachment was issued for his person upon an order to show cause why he had failed to pay over said legacy, and on July 10, 1914, on the hearing thereon, the defendant was committed to the custody of the sheriff until he should obey the order of the court. He remained in the sheriff's custody until August 5, 1914, when the grand jury returned an indictment charging him with the embezzlement of the amount of this legacy. Upon trial the defendant was convicted and sentenced to seven years in the state prison. From the judgment of conviction and from an order denying a motion for a new trial, the defendant prosecutes this appeal. "Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death." See Estate of Campbell, 149 Cal. 712, 87 Pac. 573; Estate of Glenn, 153 Cal. 77, 94 Pac. 230. In the light of this section of the Code and of these authorities, it seems clear that Mildred Jane Porter was the owner of this legacy from the date of her mother's death, subject to the claims of the creditors of the estate and to the rights of other devisees and legatees to a ratable distribution in case the estate prove insufficient to fully satisfy the terms of the will, neither of which conditions exists in this case. For purposes of administration the temporary possession of the entire estate, including the money which this legacy called for, was in the executor; and the condition of his trust was that it should be safely kept until such time as it should be distributed to its owners by the court's decree. The fact that the defendant, as executor of this estate and custodian of these funds, was also the owner, as devisee, of an undivided one-half of the estate, would in no sense have entitled him to convert any portion of this estate to his own personal uses prior to its legal distribution; and, if he did so, he would be guilty of embezzlement, although no decree of partial or final distribution had yet been made. This being so, the contention of the appellant as to the limited period to which the time of commission of the offense is to be confined must fail. The jury may have concluded from the evidence before it that the defendant had converted these funds to his own uses prior to the making of the decree of partial distribution, and we think there was enough evidence to justify such a conclusion. [1] The first contention urged by the appellant is that the venue of the offense was not proved as laid in the indictment. This contention the appellant predicates upon certain premises, the first of which is his assertion that the time within which his embezzlement of the money constituting this particular legacy could possibly have been committed is that lying between the 12th day of June, 1914, the date of the decree of partial distribution, and the 5th day of August, 1914, the date of the indictment. During this period the evidence shows that the defendant was in Monterey county from June 10th to June 19th, and hence, appellant argues, could not have committed a crime triable in Marin county between those dates. From June 19th to August 5th the defendant was in the custody of the sheriff and in jail in Marin [3] The fact that in one or more of his county, and could not, therefore, according reports or accounts the executor reported to the argument of appellant, have commit- this money as on hand in the estate would ted the crime of embezzlement between those not be at all conclusive that the funds were dates. Conceding for the sake of argument actually there at the time of such report. Crew v. Pratt, 119 Cal. 131, 51 Pac. 44. [4] The appellant urged several objections, attorney, while Mildred Jane Porter was, to the admission in evidence of the decree of at the date of filing said petition, a minor partial distribution, which objections he just under the age of 18 years, and was not vigorously repeats in this court as grounds competent to give a delegation of authority. of reversible error. But the decree of par- But the record affirmatively shows that tial distribution, as we have seen, was not shortly after the filing of this petition Mildthe source of the legatee's title, but served red Jane Porter became of age, and coming only in this case as the basis for the de- to California, and, being then of age, parmand made on behalf of the complaining wit- ticipated in the proceedings for partial disness, refusal of which would in itself amount tribution, and thereby ratified the acts of the to an act of conversion. This view of its attorney who represented her in filing and value as evidence in the case removes much presenting her petition. The record also disof the force of appellant's objections to the closes that the defendant appeared in redecree of partial distribution based upon the sponse to whatever notice was given, and claim that it had not become final through filed his formal resistance to the petition the expiration of the period within which it without objection to it upon the grounds might have been appealed from at the time now urged; and it further appears that of its offer and admission in evidence. As to upon the day set for hearing the attorney of this proposition, it was not necessary that record for defendant, as executor of the esit should have become final in order to serve tate, appeared and consented in open court as a basis for the legatee's demand for the to the entry of the decree. These acts on delivery to her of the legacy which it di- the part of the defendant constituted a waivrected. The statute (Code Civ. Proc. § 1661) er of whatever informalities there may have provides that the court may make its order been in the presentation of the petition or "requiring the executor to deliver to the leg-in the form of notice of the hearing thereon. atee the whole portion of the estate to which he may be entitled." It follows necessarily that the court could in such order require such delivery within a specified time, which might be much more brief than the time allowed for an appeal from such order; besides, this defendant, as executor, had not right of appeal from this order. Estate of Williams, 122 Cal. 76, 54 Pac. 386. His only right of appeal was in his capacity as devisee, and in that capacity his rights were unaffected by this order. And, since it did not determine the legatee's title to her legacy, but only her right to its present possession upon a fixed date, the defendant, as the executor of the estate, was bound to comply with it, or else, as a devisee injuriously affected thereby, to appeal from it within the time required for compliance with its terms, just as in the case of any other judgment or order requiring the present payment of money, from which a party has the right of appeal within a certain period. If he would stay the execution or effect of the judgment or order, he must exercise his right of appeal from it at once, or else he must obey its mandate. In this case the defendant nei ther obeyed the court's order in his capacity as executor, nor appealed from it in his capacity as a devisee, and hence it was properly admitted in evidence as the basis of the legatee's demand for the delivery of her legacy to her, the refusal of which would be evidence of a conversion. [5] The appellant's further contention that the trial court erred in admitting this decree in evidence, for the reason that the probate court did not acquire jurisdiction to make it, is based upon the facts that the petition for partial distribution had appended to it the name of Mildred Jane Porter, which was written there, not by herself, but by her local The appellant urges a number of objections to the instructions given or refused or modified by the court; but a reading of the entire body of the instructions as given by the court convinces us that these objections are not substantial enough to justify a reversal or merit a separate review. Judgment and order affirmed. We concur: LENNON, P. J.; KERRI DABNEY OIL CO. v. PROVIDENCE OIL CO. OF ARIZ. et al. (A. H. BUTLER & CO. et al., Interveners). (Civ. 1775.) (District Court of Appeal, Second District, California. Dec. 23, 1915.) APPEAL AND ERROR 80 DECISIONS APPEALABLE. In an action against numerous defendants, appellants were allowed to intervene after they had lost control of the corporate plaintiff. On motion of plaintiff the action was dismissed as others. Held, that the interveners were not ento some of the defendants, but continued as to titled to appeal from such order of dismissal, it being only a partial determination of the case. Error, Cent. Dig. §§ 429, 432, 433, 450, 456, [Ed. Note.-For other cases, see Appeal and 457, 494-509; Dec. Dig. 80.] Appeal from Superior Court, Los Angeles County; Charles Wellborn, Judge. Action by the Dabney Oil Company against the Providence Oil Company of Arizona and others, in which A. H. Butler & Co. and others were allowed to intervene. From a judgment of dismissal as to some of the defendants, the interveners appeal. Appeal dismissed. Valentine & Newby, of Los Angeles, for appellants. Hunsaker & Britt, Murphey & Poplin, and N. P. Moerdyke, all of Los Angeles, for respondents. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes direct attention to Stich v. Goldner, 38 Cal. CONREY, P. J. In this action a complaint, brief. In response to these cases appellants was filed by the Dabney Oil Company to establish the plaintiff's ownership of certain oil-bearing lands and to have certain of the defendants declared trustees for the plaintiff of property held in possession by them, and for an accounting. After the filing of plaintiff's complaint an election of directors of plaintiff corporation was held and the control of the corporation passed from a board of directors which was acting in harmony with A. H. Butler & Co. (a corporation) and others associated with them as stockholders in the Dabney Oil Company, to a new board of directors controlled by certain of the defendants. Under its new control the plaintiff caused a substitution of attorneys to be made herein and moved for a dismissal of plaintiff's action as against the defendants A. T. Jergins, Palladium Investment Company, a corporation, and Midway Royal Petroleum Company, a corporation. At the time of substitution of a new attorney for the plaintiff corporation the court by order gave leave to said A. H. Butler & Co. et al. (appearing by the same attorneys who had theretofore For these reasons we conclude that the obbeen employed as attorneys for the corporation), to file a complaint in intervention. jections made by respondents to further conThat complaint was filed, and later an amend-sideration of this appeal should be sustained, ed complaint in intervention was filed by the and the appeal is dismissed. same interveners. The motion for dismissal of the action of the plaintiff as against the three defendants above mentioned and the demurrer of those defendants to the amended complaint in intervention came on for hearing at the same time. After argument it was ordered that the motion be granted; also that the demurrer of those three defendants to the amended complaint in intervention be sustained without leave to amend, and it was ordered that the action be dismissed as to the defendants Midway Royal Petroleum Company, A. T. Jergins, and Palladium Investment Company, and that the amended complaint in intervention be dismissed as to said defendants. The defendants named in the amended complaint in intervention are the same as the defendants named in the principal complaint. So far as the record shows, the action remains pending as to seven defendants other than the three affected by said orders of dismissal. The interveners have attempted to appeal "from the judgment of dismissal as to the defendants Midway Royal Petroleum Company, A. T. Jergins, and Palladium Investment Company, rendered in the above-entitled action on the 1st day of April, 1913, and from the whole of said judgment." The respondents claim that the appeal should be dismissed for the reason that the order of dismissal was not a final judgment and determination of the action. As author ity for the proposition insisted upon by them they refer us to Nolan v. Smith, 137 Cal. 360, 70 Pac. 166, and other cases cited in their exist. We concur: JAMES, J.; SHAW, J. Ex parte O'CONNOR. (Cr. 333.) (District Court of Appeal, Third District, California. Dec. 21, 1915.) 1. HABEAS CORPUS 92-NATURE OF PROCEEDING QUESTIONS REVIEWABLE. The sole ultimate question involved in habeas corpus is whether the order, adjudication, or process whose validity is attacked is one within the lawful jurisdiction of the judge, court, or tribunal making, granting, or issuing it. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. 92.] 2. HABEAS CORPUS 85.-JUDGMENT-VA LIDITY-PRESUMPTION. The judge of the superior court who committed petitioner to the state hospital on the ground of intemperate use of narcotics or stimulants, causing the loss of his power of selfof the subject-matter of the adjudication, and control, being by law invested with jurisdiction having acquired jurisdiction of the person of the petitioner, it must be assumed on a collateral ⚫ attack on the adjudication by habeas corpus, in the absence of a contrary showing upon the face of the judgment roll, that the proceedings leading to the judgment or order of commitment were in all respects regular and in accordance with the vital requirements of the statute. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. 85.] 3. DRUNKARDS 2-COMMITMENT TO STATE INSTITUTION-PROCEEDINGS-DISCRETION OF COURT. 1911, p. 396, prescribing the proceedings for Under Pol. Code, § 2185c, as added by St. commitment of an inebriate to the state hospital, and requiring the judge to give a reasonable op For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |