Contestants say that the code does not demand that the evidence to be given at the trial be stated, and it points out clearly what is necessary in a pleading and how it shall be construed. The facts constituting the cause of action should be stated in ordinary and concise language. It does not say the evidence of those facts. It is the ultimate fact, and not the prior or probative facts, which should be set forth. Presumptions of evidence cannot dispense with averments of ultimate facts. Probably no better statement can be made of what is required than that contained in the opinion of Mr. Chief Justice Field in Green v. Palmer, 15 Cal. 414, in which he engaged at length in a discussion upon this topic. The syllabus on page 412 of that volume is an accurate abbreviation of the context.

Under our system of pleading, facts only must be stated. This means the facts, as contradistinguished from the law, from argument, from hypothesis, and from the evidence of the facts. Those facts, and those only, must be stated, which constitute the cause of action or the defense. Each party must allege every fact which he is required to prove, and will be precluded from proving any fact not alleged; and he must allege nothing affirmatively which he is not required to prove. Negative allegations, however, are frequently necessary, though they are not to be proved. If every fact essential to the claim or defense be not stated, the adverse party may demur; and if any fact not essential to the claim or defense-in other words, any except issuable facts-be stated, the adverse party may move to strike out the unessential parts. An unessential, or what is the same thing, an immaterial allegation, is one which can be stricken from the pleading without leaving it insufficient, and need not be proved or disproved. Whether an allegation be material may be determined by the question, "Can it be made the subject of a material issue?" In other words, "If it be denied, will the failure to prove it decide the case in whole or in part?" If it will not, then the fact alleged is not material. All statements in a pleading must be concisely made, and when once made, must not be repeated.

It is true that judicial construction must be liberal, and that no error or defect should be regarded unless it affects substantial rights; but liberal construction must not incline

to laxity where the rules of pleading are well established and have been so for many decades interpreted by the supreme courts, as in this class of cases. Substantial rights can be conserved only by adherence to those rules.

The points raised by the demurrer in regard to paragraph 7 of the contest do not seem to be technical; if this court so regarded them, they would be overruled, but they appear to conform to the authorities requiring particularity in pleadings of this kind.

It has ever been the rule that it is essential to the issue that there shall be certainty, clearness, distinctness and particularity in pleading. When it is said that the issue must be certain, the meaning is that it must be particular or specific as opposed to general. Each issue tendered must be single, certain and material in its quality. The allegations should be definite, precise and positive, so as to acquaint the respondent with the matter that he is called upon to traverse. These rules are recognized, adopted and universally approved by the courts, and need not be enlarged upon here: See Stephen's Pleading, Andrews' Am. ed. 1894, secs. 100-103.

An allegation that influence was overpowering or that the testatrix was unable to resist, without the recital of the facts supporting such conclusion, is not sufficient. An allegation that "contestants are informed and believe" that a certain event occurred is not positive. The averment must be direct, although it may be based on such information and belief. The fact itself must be alleged in set terms.

An allegation "on information and belief" that the will of Clara Harris was absolutely overpowered by the lies and misrepresentations of Lawrence Harris continued daily after the death of Stephen L. Harris in February, 1902, lacks certainty, under the rule, because it does not specify the lies nor particularize the species of misrepresentations which dominated the will of decedent. Allegations of fraud should state the facts sufficient to constitute the fraud, otherwise a special demurrer should be sustained: Scearce v. Glenn County, 100 Cal. 419, 35 Pac. 302.

These are specimens of imputed infirmities in the pleading here demurred to, of which the court feels compelled to take notice and which may be cured by an amended contest. The court does not favor dilatory pleas, nor does it design to en

courage the demurrer habit, but there are certain well-recognized rules of pleading which it cannot, if it would, disregard.

Paragraph 8 of the contest is subject to the foregoing remarks, as all the allegations of 7 are incorporated therein, except, perhaps, the part beginning with line 17 on page 4 down to and including line 18 on page 6. This seems to be fairly within the matters of Ruffino, 116 Cal. 304, 48 Pac. 127, and Wilson, 117 Cal. 280, 49 Pac. 711. The contestants may introduce evidence of the manner of acquisition of the property disposed of in the will, as bearing in some degree, however remotely, on the question of testamentary capacity. The substance of this clause may be considered proper to support evidence within the limitation suggested, although the form might be remodeled to correspond to the views of this opinion.

Otherwise, the demurrer should be and it is sustained, with ten days within which to file an amended contest.

The Principal Case in Denying the Power of the superior court in probate to appoint a guardian ad litem is important, in that it decides a question not infrequently raised and hitherto perhaps not free from doubt. The notes in the pages to follow have to do with guardians ad litem in civil actions generally, not in probate proceedings, and hence the authorities and statements therein are not to be construed as in any way modifying the decision of Judge Coffey in the principal case.

RIGHTS, DUTIES, AND POWERS OF GUARDIAN AD LITEM. Power to Sue.-Infants, being persons under disability, cannot conduct their own legal proceedings, and the usual custom is for them to appear either by next friend or guardian ad litem. Under a Mississippi statute, a guardian ad litem is considered the full representative of the rights and interests of the minor for the particular case in which he was appointed, and has the same powers as a general guardian: Burrus v. Burrus, 56 Miss. 92; while in Pennsylvania a next friend of an infant, though recognized for certain purposes, is held not to have the power of a trustee or guardian: Turner v. Patridge, 3 Penr. & W. (Pa.) 172.

A suit may be brought by the next friend of an infant without first obtaining leave of the court or of the infant: Bethea v. McCall, 3 Ala. 449; Barwick v. Rackley, 45 Ala. 215; O'Donnell v. Broad, 11 Pa. Co. Ct. 622, 1 Pa. Dist. Rep. 650. But see In re Whitlock, 19 How. Pr. 380. He is, however, under the control of the court, and may be removed and another appointed if the interests of the infant require it: Ex parte Kirkman, 40 Tenn. (3 Head) 517. And in proceedings for the sale of real estate of a minor, the spe

cial guardian appointed was held to be an officer of the court; and that until he reached his majority, and the purchase money had in fact been paid over to him, and as long as it remained in the hands of the special guardian, the court had control over it and over all the proceedings in the application: In re Price, 67 N. Y. 231, affirming 6 Hun, 513.

Where a life insurance policy provided that in case of death the insurance should be paid to the children or their guardian, if under age, the guardian ad litem may sue therefor, and it need not be in the name of the general guardian: Price v. Phoenix etc. Ins. Co., 17 Minn. 497, 10 Am. Rep. 166.

Such Representative of an Infant can Act Only in the Matter for which he was appointed: Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212. So a special guardian appointed to represent a minor in a private sale of land cannot bind him by a judgment in a suit brought by the guardian to compel a purchaser to take title: Armstrong v. Weinstein, 53 Hun, 635, 6 N. Y. Supp. 148. His authority does not extend to bringing or prosecuting more than the one particular action in which he was appointed: Rosso v. Second Ave. R. Co., 13 App. Div. 375, 43 N. Y. Supp. 216. Therefore a guardian ad litem cannot agree that a decision in one case shall determine that in another, although the same facts are involved, the same parties, and substantially the same points of controversy: McClure v. Farthing, 16 Mo. 109. Where such a guardian is appointed in an action for the settlement of a trust, he cannot bind the infant by a stipulation in regard to the expenditure of money coming from a totally distinct source: In re Kennedy's Estate, 120 Cal. 458, 52 Pac. 820.

The Power of a Next Friend Commences with the suit; and he can therefore maintain a suit for such causes of action only as may be prosecuted without a previous special demand, unless the defendant has waived the necessity therefor: Miles v. Boyden, 20 Mass. (3 Pick.) 213. His authority terminates with the judgment in the case: Davis v. Gist, Dud. Eq. (S. C.) 1; or with the minority of the infant: Lang v. Belloff, 53 N. J. Eq. 298, 31 Atl. 604.

The Acts of a Guardian Ad Litem are Binding on Infant parties for whom they are performed, when not impeached for fraud, collusion or gross misconduct: Smith v. Taylor, 34 Tex. 589. So if a party is served with process and a guardian ad litem is appointed to represent him, who appears and files an answer, the ward is brought into court for all purposes of the suit and is charged with notice of all new pleadings that may be filed either by the original parties or any others who may come into the case; and he is bound by whatever judgment may be recovered by or against any person who was a party to the suit at the time of its rendition: Deering v. Hurt (Tex.), 2 S. W. 42.

Duty to Make Vigorous Defense. The law is exceedingly jealous in guarding the interests of infant suitors, and exacts of their next

friends or guardians adelitem as vigorous a defense to the action as its nature will admit: Sconce v. Whitney, 12 Ill. 150; Rhoads v. Rhoads, 43 Ill. 239; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015. In Stunz v. Stunz, 131 Ill. 210, 23 N. E. 407, it is said: "It is the duty of the guardian ad litem, when appointed, to examine into the case and determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of care and prudence will dictate. He is not required to make a defense not warranted by law, but should exercise that care and judgment that reasonable and prudent men exercise, and submit to the court for its determination all questions that may arise, and take its advice, and act under its direction in the steps necessary to preserve and secure the rights of the minor defendants. The guardian ad litem who perfunctorily files an answer for his ward, and then abandons the case, fails to comprehend his duties as an officer of the court." See, also, Stammers v. McNaughten, 57 Ala. 277; Stark v. Brown, 101 Ill. 395. He cannot fail to plead just because the infants are necessary or improper parties: Farmers' etc. Trust Co. v. Reid, 3 Edw. Ch. 414. And if the interests of the minors are prejudiced through the failure of the guardian ad litem to raise a proper objection to an action he is liable to them therefor: Reed v. Reed, 46 Hun, 212, 13 Civ. Proc. Rep. 109. See, also, Banta v. Calhoun, 9 Ky. (2 A. K. Marsh.) 166.

Making Prejudicial Admissions.-So far as concerns the substantial rights of his ward, a guardian ad litem can make no admissions to bind him, but everything must be proved against an infant: Hooper v. Hardie, 80 Ala. 114; Pillow v. Sentelle, 39 Ark. 61; Evans v. Davies, 39 Ark. 235; Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212; Cochran v. McDowell, 15 Ill. 10; Taylor v. Parker, 1 Smith (Ind.), 225; Melton v. Brown, 20 Ky. Law Rep. 882, 47 S. W. 764; Benson v. Wright, 4 Md. Ch. 278; Burt v. McBain, 29 Mich. 260; Cooper v. Mayhew, 40 Mich. 528; and this holds good both at law and in equity: Atchison etc. R. Co. v. Elder, 50 Ill. App. 276; Collins v. Trotter, 81 Mo. 275.

In Atchison etc. R. Co. v. Elder, 50 Ill. App. 276, an infant was injured in a railroad accident. His father, as next friend, entered into a compromise with the railroad company, whereby a suit was instituted, attorneys employed by the company preparing the papers. The matter was submitted to the court, without a jury and without evidence, and a judgment for plaintiff entered for $250, pursuant to the compromise. An amended declaration was filed, whereon a hearing was had and the recovery increased to $2,500. The appellate court affirmed this judgment, holding that no estoppel applicable to the father could affect the infant. That a plaintiff in ejectment may be estopped from claiming land by recitals of ownership in a deed of his special guardian, see Esterbrook v. Savage, 21 Hun, 145.

Must Exclude Illegal Evidence.-If incompetent and illegal evidence is introduced, without any objection on the part of the guardian,

Prob. Dec., Vol. III-2