declaration of homestead. No other facts relating to the character of the use of the four lots appear from the evidence. We cannot say that the findings aforesaid are not within the fair inferences arising from the facts above related.

[3] It is also claimed that there is no support in the evidence for the finding regarding the fraudulent intent of Douglas in making the conveyance. We cannot sustain this claim. The evidence of the defendant, as a whole, indicated that the only consideration really given for the conveyance was the sum of $10, paid to him at the time by his wife, and that this was not paid as a price for the property, but for the reason that they deemed it necessary to make such payment in order to make the deed "legal," as he termed it, and that the deed was not made as a spontaneous transaction or voluntary gift, but, because he feared that his creditors were about to attach the property. From all this the fraudulent intent was deducible. [4] The discharge in bankruptcy could have no effect on the right of the trustee to recover property unless it was shown that all the debts and expenses had been paid. There is no claim that such was the case. The judgment is affirmed.

We concur SLOSS, J.; LAWLOR, J.

(171 Cal. 351)

FELL v. FRIERSON et al. (L. A. 3447.) (Supreme Court of California. Nov. 19, 1915.) 1 COSTS 42-EFFECT OF TENDER.

Under Code Civ. Proc. § 1030, providing that, when the defendant alleges in his answer tender of the full amount due, and deposits in court for plaintiff the amount so tendered, and the allegation is found true, plaintiff cannot recover costs, where defendant, sued on his notes and the chattel mortgage securing them, tendered plaintiff less than the amount due after action brought, the tender was insufficient to preclude plaintiff from recovering his costs.

Department 2. Appeal from Superior Court, Imperial County; Franklin J. Cole, Judge.

Action by A. S. Fell against Andy Frierson and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Frank Birkhauser, of Calexico, for appellant. W. H. Sprauge, for respondents.

HENSHAW, J. [1-3] Plaintiff sought to foreclose a chattel mortgage given as security for the payment of two promissory notes, the principal sums of which notes in the aggregate exceed $300. The notes made provision for the payment of attorney's fees "should suit be commenced to enforce the payment." Plaintiff in his action of foreclosure sought a recovery for the amount of the notes, with interest, costs, and attorney's fees. Defendant made a tender of the sum of $153.50 to the clerk of the court, and filed an answer alleging that this was all that was due, and that the notes and the mortgage declaring an indebtedness in a greater amount were secured by fraud. Defendant's tender was rejected, the ground of rejection being stated, and that ground was that the amount of the tender was insufficient. The court found that the defendant Frierson violated all the terms and conditions of his chattel mortgage, that there was due to plaintiff upon account of the note and mortgage $179.85 principal and $8.39 interest, or a total of $188.24, and that this was a valid lien upon the property. It found that defendant had tendered the sum of $153.50, and further found "that by reason of such tender above mentioned plaintiff is not entitled to recover from said defendant Andy Frierson any costs, percentage, nor attorney fee, nor necessary disbursements herein in the foreclosure of this chattel mortgage." The judgment followed these findings, and plaintiff appeals.

By the findings of the court the tender was insufficient, and could not operate to preclude

2. CHATTEL MORTGAGES 25 PROVISION FOR ATTORNEY'S FEES-VALIDITY-STATUTE. Under Civ. Code, 8 3088, and Code Civ. Proc. 1021, providing that a negotiable instrument may provide for the payment of attorney's fees after suit to compel payment, where notes secured by a chattel mortgage provided for the payment of attorney's fees should suit be commenced, the contract to pay attorney's fees was valid and enforceable against the

maker.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 74; Dec. Dig. 25.] 3. CHATTEL MORTGAGES 290-FORECLOSURE -COSTS AND FEES-PROPRIETY OF ALLOW

ANCE.

Civ. Proc. 1030. It was not only insufficient in amount, but it was made after action brought. The contract for attorney's fees was a valid and enforceable contract. Code Civ. Proc. 1021; Civ. Code, 3088. It is manifest that plaintiff was not only within his rights in commencing the action, but even that it was necessary for him so to do, and under these circumstances costs and attorney's fees should have been allowed him. Clemens v. Luce, 101 Cal. 432, 35 Pac. 1032; Brooks v. Farrington, 117 Cal. 219, 48 Pac. 1073; Klokke v. Escailler, 124 Cal. 297, 56

Pac. 1113.

The judgment is reversed, with directions to the trial court to enter a judgment in conformity with the foregoing.

(171 Cal. 353)

HERSHEY v. LOS ANGELES PAC. CO. et al. (L. A. 3501.)

Before the interference with plaintiff's land plaintiff had entered into a written con. tract with the defendant corporation, of

2. EVIDENCE 461 PAROL EVIDENCE AFFECTING WRITING-CONTRACT TO CONVEY REALTY-INTENT OF PARTY.

Where plaintiff sued defendant railroad to enjoin further trespasses, and the road, answering, sought specific performance of plaintiff's written contract to convey a right of way through her lands, which contract plaintiff contended was intended by her merely to convey a way through lands which she held as sole owner and not also through those which she held as tenant in common, the plaintiff being allowed to testify as to all facts surrounding the execution of the contract and to her understanding of it, her testimony as to the secret intent which she had in executing the contract was properly excluded.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. 461.] 3. SPECIFIC PERFORMANCE 121 UNDERSTANDING OF CONTRACT SUFFICIENCY OF EVIDENCE.

In defendant railroad's cross-suit for specific performance of an agreement to convey a right of way, evidence held sufficient to sustain finding that plaintiff intended to contract for a way over her northerly as well as her southerly property.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. 121.]

Department 2. Appeal from Superior Court, Los Angeles County; Stanley A

Smith, Judge.

Suit by Mira Hershey against the Los Angeles Pacific Company and others. Judg ment for the named defendant, and plaintiff appeals. Affirmed.

Lynn Helm, Gray, Barker & Bowen, and Wheaton A. Gray, all of Los Angeles, for appellant. Frank Karr and A. .W. Ashburn, Jr., both of Los Angeles, for respondent.

HENSHAW, J. Plaintiff sued defendants for damages resulting from a continuing trespass by the defendants upon plaintiff's land in entering thereon, and in building and constructing a railroad thereover. Further plaintiff sought a perpetual injunction restraining further trespass. The defense rested upon a written contract by plaintiff to defendant corporation to grant a right of way across the lands of plaintiff for the construction and maintenance of the railway, its efforts to build which resulted in this action. The defendant Palmer was but an agent of the railway corporation in the matter of this construction.

sions:

"That said party of the first part, for and in consideration of the sum of ten dollars ($10.00) to her in hand paid by the said party of the second part, receipt whereof is hereby acknowledged, hereby covenants and agrees to deed to said party of the second part, on its demand therefor, a strip of land fifty (50) feet wide, being twenty-five (25) feet on each side of the center line of the right of way for an electric railroad, as it is hereafter located by said party of the second part, and also such additional land as may be necessary for slopes to cuts and fills, over and across the property owned by said party of the first part in what is known as Cahuenga Pass and on both sides thereof, in vided that said road is located as near as prac a general northerly and southerly direction, proticable to the county highroad, and providing, further, that if said railroad is not constructed over and across said lands within five years after the date hereof, said land so deeded shall revert to the grantor."

Defendant corporation by way of answer set up the terms of this agreement and averred full performance of it, and further averred the same facts by way of cross-complaint and prayed for specific performance of the contract to convey. The execution of this contract is admitted, but it appears that Cahuenga Pass, referred to in the contract, extends in a northerly and southerly direction; that plaintiff owned in severalty a tract of land of about 160 acres lying on the southerly side of the summit or divide of this pass, and owned in common with other tenants a tract of land on the northerly side of this summit or divide. Her contention is that it was only a right of way over her southerly land which she designed to grant. Upon the part of defendant and cross-complainant it was insisted that her

contract covered and was designed to cover

a right of way over all of her lands. The court, with the evidence before it, construed the contract to mean and as intended by the parties to it to mean an agreement by plaintiff to convey the described right of way over both her pieces of property. So amply sustained is the finding of the court in this regard that it may not here be overthrown, and indeed there is no reason for overthrowing it.

[1, 2] It is contended, however, that the court fell into serious error in rejecting the evidence of plaintiff concerning the land which she "intended" her agreement to apply to. The objection to this line of inquiry was that such evidence of intent was directed to a concealed fact-the undisclosed state of plaintiff's mind; that it was permissible for plaintiff to testify to the facts attending and surrounding the execution of the contract, and to her understanding of the contract when she executed it, but that it was not proper to allow her to testify as to her undisclosed intent. The court sus

It is true that for many years the word "heirs" has not been necessary, either in a

will or a deed, to pass a fee in real property. Civ. Code, §§ 1329, 1072. It must be admitted that the use of that word may now, more readily than formerly, be deemed to indicate some other purpose. If the will bore evidence of having been framed by some one unfamiliar with the use and effect of words having a technical meaning in conveyances, this argument would have even greater force. But it was executed and attested with due formalities, and it bears evidence in itself that it was drawn by some person of skill and experience in such matters. It is common knowledge that the use of the phrase "to his heirs and assigns" in a disposition of the fee in real property still persists and is frequent, notwithstanding the fact that it is unnecessary for that purpose. In a will so drawn, therefore, when occurring in the customary place, as it does here, it has little significance of any intent other than the usual one to pass the fee. It is very unlikely that a person familiar with the law of wills and accustomed to draw instruments dis posing of property would have left the intention to provide for a substitution, to prevent 8 lapse in case of the death of the residuary devisees, so vaguely and ineffectively expressed as it would be by these words alone, or that he would have taken for that purpose words so long in universal use solely to dispose of a fee-simple estate. While the second clause shows the desire of the testatrix to prefer Jackson over her own kin, it discloses nothing indicating any wish to favor his heirs in case of his death. At the date of the will she was about 75 years old, and Jackson was about 48 years old. It is a fair inference that she did not consider the probability that she might survive him.

[6] Furthermore, the word "heirs" occurs only in the phrase "and to his heirs and assigns forever." This phrase is the regular ancient formula in a conveyance of the fee in real estate. No reason appears for giving

to the word "heirs," as used therein, any greater significance than should be given to the word "assigns." The latter word would have been meaningless if used as a word of substitution. The most reasonable conclusion from the whole will is that the residuary clause was made without any intention at all concerning the destination of the property in case Jackson should outlive the testatrix. This conclusion is fortified by a consideration of sections 1334 and 1335 of the Civil Code. Section 1334, among other things, declares that a testamentary dispo

"The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person."

The residuary clause gives the property directly to Jackson. The words "and to his heirs and assigns forever," in the connection in which they are used, and according to the usual acceptation of the phrase, do not purport to give anything to the heirs or assigns directly, but are merely descriptive of the estate of inheritance given to Jackson. By the rule expressed in section 1335, and according to customary usage, they would be words of limitation relating to the estate given to Jackson, rather than words of donation to his "heirs and assigns." We think the court below correctly determined that there were no words of substitution. The order is affirmed.

We concur; SLOSS, J.; LAWLOR, J.

(171 Cal. 340) SCHULMEYER'S GUARDIANSHIP v. Mc ALLISTER. (Sac. 2307.) (Supreme Court of California. Nov. 18, 1915.) 1. INSANE PERSONS 30-RIGHTS OF PERSONS TO CONTROL PERSON AND PROPERTY.

An adult person has the right to control not be taken from him, except upon a showing his own person and affairs, and that right must of the statutory grounds warranting the appointment of a guardian.

[Ed. Note.-For other cases, see Insane Persons, Cent. Dig. §§ 43, 45, 61; Dec. Dig. 30.]

2. INSANE PERSONS GUARDIAN MONY.

APPEAL

33-APPOINTMENT OF CONFLICTING TESTI

Where there is a substantial conflict of the testimony on the issue of the competency of one for whom a guardian is sought, the conclusion reached by the trial court is not open to review on appeal.

[Ed. Note.-For other cases, see Insane Persons, Cent. Dig. 88 44-46, 48, 50, 51, 59; Dec. Dig. 33.] INCOMPETENCY

3. INSANE PERSONS 2

EVIDENCE. Evidence held to show such mental incomretency as to warrant the appointment of a guardian for the plaintiff.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 4-10; Dec. Dig. 2.] 4. INSANE PERSONS 35- INCOMPETENCY ORDER APPOINTING GUARDIAN

CIENCY.

-

SUFFI