under a judgment were stayed by the taking of an appeal unless an additional stay bond was required by sections 942, 943, 944 or 945 of the Code of Civil Procedure. It was obviously the purpose of the amendments of 1921 (Stats. 1921, p. 193) to alter this situation, in which if the notice was given under section 941 a bond of three hundred dollars was required, but none if it was given under 941b.

The effect of the repeal of section 941b and the amendment of section 940 was to make the mere filing of a notice with the clerk effective to take the appeal in all cases. By reason of the amendment of section 940 removing the requirement of a stay bond to perfect an appeal, section 941, prescribing the bond required, was no longer necessary. It having been in effect repealed by the amendment of section 940, the section numbered 941 was used for a different subject.

Section 949 was amended in 1921, as already pointed out, by the insertion of the provision that a stay of execution under section 941 was not applicable to a judgment for the abatement of a nuisance. Before its amendment, upon perfecting an appeal under section 940 and giving a bond under section 941, a judgment was stayed; upon perfecting an appeal under section 941b by giving the notice of appeal, a judgment was stayed without an appeal bond. (People v. Laine, 177 Cal. 742, 745 [171 Pac. 941].) In view of these facts, the subsequent amendment of sections 940 and 941 and the repeal of section 941b merely give to section 949 the meaning that the perfecting of an appeal, without a bond, is sufficient to stay execution of a judgment except when a special bond is required under sections 942, 943, 944 or 945. It follows that the effect of the amendment of 1921 to section 949 is that an appeal, with or without a bond, does not stay execution of the judgment in such a proceeding as the one at bar.

[4] As already indicated, this court, by the amendment to section 949, is not deprived of its authority to issue a writ of supersedeas to stay execution. It remains to consider whether in the exercise of its appellate jurisdiction in the case at bar it should issue such a writ, which does not issue of right, but only when in the judgment of the court it is necessary to protect the rights of the parties

on appeal. (Luckenbach v. Krempel, 188 Cal. 175 [204 Pac. 591].) It has been held that a writ of supersedeas will not be granted where there has been an unreasonable delay in taking an appeal (Bauer v. Parker, 47 App. Div. 623 [61 N. Y. Supp. 1021]), or where the appeal is merely for the purpose of delay. (See cases cited in 3 C. J. 1291, note.) [5] The legislature by enacting section 949 has indicated as its opinion that there should be no stay of an action to abate the character of nuisance complained of in the case at bar, and this court ought not to lend its aid to the continuance of such business in the absence of some showing of merit in the appeal and some showing of diligence in the prosecution of the appeal. In the case at bar the notice of appeal was served on May 13, 1922. The order to show cause upon the application for a writ of supersedeas was made May 22, 1922, ordering a stay of proceedings pending a decision upon the application, but the transcript on appeal is not yet filed. Under these circumstances no sufficient reason appears why the writ should be issued.

The petition is denied.

Wilbur, J., Waste, J., Shaw, C. J., Lennon, J., and Ward, J., concurred.

[L. A. No. 6930. In Bank.-January 5, 1923.]

CORA LEE BAKER et al., Respondents, v. ORRILLA Z. MILLER, Appellant.

[1] SPECIFIC PERFORMANCE - CONTRACT FOR DIVISION OF ESTATE — PLEADING ADEQUACY OF CONSIDERATION - FAIRNESS OF CONTRACT -INSUFFICIENT COMPLAINT.-In an action for the specific performance of a contract for the division of an estate, the complaint fails to state a cause of action where the only averment as to the adequacy of the consideration and the fairness of the contract is that "at or about the date of the contract the estate of said deceased was of the appraised value of $22,753, and said contract was in all respects just and fair and liberal in its provisions in favor of said defendant."

APPEAL

[2] ID.-INSUFFICIENT COMPLAINT ANSWER AND TRIAL CONSTITUTIONAL LAW.-In view of the constitutional inhibition that no judgment shall be set aside for any error as to any matter of pleading, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice, a judgment for the plaintiff in an action for specific performance of a contract will not be reversed for error in failing to sustain a general demurrer to the complaint which failed to sufficiently allege the adequacy of the consideration and the fairness of the contract, where after the demurrer was overruled, the defendant answered the defective averment and the greater part of the testimony was directed in support of the denial therof. [3] ID.

·CONTRACT FOR DIVISION OF ESTATE · CONVEYANCE OF REAL PROPERTY-INABILITY TO SECURE TITLE-CONSTRUCTION OF PROVISION.—An added paragraph to an executed contract for the division of an estate to the effect that if the title to the real property that one of the parties was to receive was not secured for her as provided in the contract she should be paid in lieu of the property seventeen hundred dollars out of the insurance policies, did not make it optional with the other party to pay such sum instead of conveying the property, but the latter was obligated to do all within her power to secure the title and make the conveyance. [4] ESTATES OF DECEASED PERSONS-CONTRACT FOR DIVISION OF EsTATE RIGHT OF ADMINISTRATOR-CONSTRUCTION OF CODE.-Section 1576 of the Code of Civil Procedure providing that no executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale, does not prevent heirs making a contract for the division of the estate even though one of them is also the administrator, such section being only declaratory of the principle of law existing before its enactment, that a trustee must not deal with himself.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. Affirmed.

The facts are stated in the opinion of the Court.

Kemp & Clewett for Appellant.

Geo. E. Cryer for Respondents.

WASTE, J.-The defendant appeals from a judgment and decree in specific performance.

Plaintiff alleged and the court found that Art O. Miller died intestate, leaving an estate in the county of Los Angeles

consisting of real and personal property. Cora Lee Baker (who has since married, and whom we will refer to as the "plaintiff'), was the surviving widow, and the defendant, Orrilla Z. Miller, was the surviving mother of said deceased. They were his sole heirs at law. In due time plaintiff was appointed and qualified as administratrix of the estate. The defendant, who was the principal creditor of the deceased, filed claims against his estate approximating eight thousand five hundred dollars. She also held a second lien upon certain of the real property, which appears to have been the home of the decedent and the plaintiff. The deceased was further indebted to the defendant for other sums of money, to secure the payment of which he had during his lifetime assigned certain policies of life insurance.

Before the filing of an inventory and appraisement of the estate the plaintiff and defendant entered into a written contract, by the terms of which plaintiff agreed to at once resign as administratrix of the estate, in favor of O. A. Miller, son of the defendant, and to request and secure his appointment as administrator of said estate. By the terms of the agreement plaintiff was to receive the sum of one hundred dollars as her commissions as administratrix of the estate to the date of the contract, and the sum of five hundred dollars in cash, and the real property hereinbefore mentioned, together with certain personal property, defendant to release the real property from her indebtedness, and to reduce the first lien thereon to the sum of one thousand dollars, the defendant thereupon to receive the rest, residue and remainder of the estate. Plaintiff also agreed to assist the defendant "in all respects in and by the exercise of her rights as widow and heir of said deceased in all the steps in the proceedings advised and desired to be taken in the administration of the estate," and stipulated that defendant might hold as security for the performance of the agreement the policies of insurance assigned by the deceased to the defendant as collateral security for the indebtedness already mentioned. In pursuance of this agreement the plaintiff filed an inventory and appraisement of the estate and resigned as administratrix, the son of the defendant being appointed in her place.

-Plaintiff performed all the conditions of the contract on her part to be performed. The defendant did not pay the five hundred dollars in cash, did not reduce, or offer to re

duce, the mortgage on the real property, did not convey, or offer to convey, the title thereto to the plaintiff; but, on the contrary, she caused the property, which had in the meantime been set aside to the plaintiff as a probate homestead, to be sold under the terms of her trust deed for the alleged nonpayment of the indebtedness secured thereby. She purchased the property at the trustee's sale for the sum of three hundred dollars, and thereupon proceeded to evict plaintiff's tenant in possession. This real property has since been sold by the agreement of the parties, and the proceeds of the sale deposited in court, pending the determination of this action.

Defendant alleged and sought to prove that she was induced to enter into the contract through the false and fraudulent representations of the plaintiff, and that by reason of the insolvency of the deceased his estate was in that condition which rendered the contract without consideration. It appeared that the negotiations between the plaintiff and the defendant were mainly conducted by an attorney of the defendant's own choosing, who continued to act as the legal adviser of the substituted administrator. The plaintiff, so the trial court found, was inexperienced in matters of business, and had practically no knowledge of the affairs of her deceased husband's estate, and the defendant and her son, O. A. Miller, were at all times better informed than plaintiff as to the condition and value of the estate, and the defendant was not induced to enter into the contract by any misrepresentations or fraud on the part of the plaintiff. As to the alleged insolvency of the estate, it appears that the business affairs of the decedent at the time of his death were very much involved. There is considerable testimony from which the defendant argues that the estate was insolvent. The trial court found to the contrary and we think the evidence sustains the finding.

[1] Appellant contends that the complaint fails to state a cause of action, in that there is no allegation of fact tending to show that the consideration provided for in the contract sought to be enforced is adequate, or that the contract is just and reasonable to the defendant. The only averment in that connection is that "at or about the date of the contract the estate of said deceased was of the appraised value of $22,753, and said contract was in all respects just and fair and liberal in its provisions in favor of said defendant." Aside from