6. APPEAL AND ERROR (§ 1099*)-LAW OF THE CASE-FORMER DECISIONS-SCOPE.

A former decision holding that an instrument was not a will, but a deed, which transferred to the grantee the property described, did not decide the question of the grantor's intent to make a completed gift of the property.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4370, 4373; Dec. Dig. § 1099.*]

7. APPEAL AND ERROR (§ 1010*)-REVIEWFINDINGS OF TRIAL COURT-CONCLUSIVE

NESS.

The finding of the trial court that there was no valid gift of the property will not be disturbed on appeal if based on substantial evidence warranting the inference that the owner did not intend to immediately divest his dominion over the property.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]

8. GIFTS (§ 49*)-INTER VIVOS-EVIDENCESUFFICIENCY.

The evidence held sufficient to support a finding of the trial court that an alleged donor did not intend that title and dominion over the property should pass.

[Ed. Note. For other cases, see Gifts, Cent. Dig. 88 95-100; Dec. Dig. § 49.*]

9. TRUSTS (§ 34*)-EXPRESS TRUSTS-Deposit OF MONEY IN BANK-INTENT OF Donor.

Where the evidence was insufficient to establish a gift inter vivos of money deposited in bank, in order that the depositor or the bank might be declared a trustee thereof, the money must have been deposited with intent to create a trust.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 44; Dec. Dig. § 34.*]

10. TRUSTS (§ 44*)-CREATION-EVIDENCE TO ESTABLISH TRUSTS-SUFFICIENCY.

Evidence held insufficient to require a finding that money was deposited in a bank with the intention of making the bank or the depositor a trustee for another.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. $$ 66-68; Dec. Dig. § 44.*]

11. EXECUTORS AND ADMINISTRATORS (§ 465*) -SETTLEMENT JURISDICTION.

The superior court had jurisdiction, in settling the accounts of an administrator, to determine the amount of money or property of the estate which had come into his hands, and to charge him therewith.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 1990; Dec. Dig. 465.*]

12. EXECUTORS AND ADMINISTRATORS (§ 510*) -SETTLEMENT-REVIEW — NATURE OF REM

EDY.

If an administrator is improperly charged with funds as belonging to the estate, his remedy is by appeal from the decree settling his final account.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 510.*]

Department 1. Appeal from Superior Court, Alameda County; T. W. Harris, Judge.

Action by Helena Crocker and others against Louisa Hall, administratrix of the estate of George D. Hall, deceased. From an order charging defendant with a certain sum as administratrix, and denying a motion for

a new trial, the administratrix appealed. Affirmed.

See, also, 149 Cal. 143, 84 Pac. 839.

Nowlin & Fassett and Wm. H. H. Hart (Aylett R. Cotton, of counsel), for appellant. S. C. Denson, for respondents.

SLOSS, J. George D. Hall died on March 15, 1904, survived by his widow Louisa Hall, Helena Crocker, his sister, and Henry A. Hall, his brother. He left no other heirs. The widow applied for letters of administration upon the estate, and such letters were issued to her on April 4, 1904. On November 2, 1904, she filed, in the matter of said estate, a paper claimed by her to be the will of George D. Hall, together with a petition that it be admitted to probate, and that letters of administration with the will annexed be issued to her. A contest was filed by the brother and sister of the decedent, respondents herein, and the court rendered judgment denying probate. An appeal to this court by the proponent resulted in an affirmance of the judgment refusing to admit the alleged will to probate. Estate of Hall, 149 Cal. 143, 84 Pac. 839. This paper is quoted in full in the opinion of this court on that appeal. It will be sufficient at this time to state that it is an instrument in the form, generally speaking, of a deed, executed by George D. Hall in his lifetime, and purporting to convey to Louisa Hall, his wife, all personal property which he possessed at the date of the instrument, or might thereafter own or possess, with the proviso, however, that the conveyance was to remain null and void during his lifetime, but to become effective upon his death, the party of the second part being authorized at that time to take full possession. At the time of Hall's death, there was on deposit in his name, in a San Francisco bank, the sum of $13,822.72, and that amount, or more, had so stood to his credit at all times after the execution of the paper just referred to. On April 2, 1904, the administratrix had filed an inventory, in which she inIcluded the money in bank as assets of the estate. After the decision determining that the paper offered by her for probate was not a will, she asked and obtained from the court leave to amend her inventory by excluding all of said money therefrom. Subsequently she filed in the superior court her final account, in which she stated that "no property, either personal or real, has been discovered or found by the above administratrix belonging to the estate of George D. Hall, deceased, and no money or other personal property is now or has been in the possession of this administratrix belonging to said estate." Objections to the account were filed by Henry A. Hall and Mrs. Crocker, and upon a hearing it was determined by the court below that the administratrix

should be charged with the sum of $13,822.72 in money belonging to the decedent at the time of his death, and an order was made that she be so charged, and that the account be settled accordingly. From this order, and from an order denying a motion for a new trial the administratrix appeals.

The main point in controversy between the parties turns upon the legal effect of the instrument offered for probate as the will of the deceased. On the part of the respondents it is contended that the paper evidences on its face an intent to dispose of property only upon the death of the signer, and that it is accordingly testamentary in character. On the other hand, the appellant urges that the proper construction of the document is that it is a present conveyance of the grantor's interest in the property described, with a postponement of the right of actual enjoyment. On the appeal from the order denying probate, the respective parties took positions directly opposed to those now assumed. The widow insisted that the paper was testamentary; the other heirs that it was not. In affirming the order there under review, this court said: "The

instrument

The instrument in question here is clearly a deed granting and transferring in præsenti to the grantee named therein the property described, but reserving its enjoyment until the happening of a future contingency, and this was clearly the purpose of the grantor." Defeated in her effort to secure probate of the paper as a will, the widow is now, naturally and properly enough, seeking to establish its effectiveness as an immediate transfer of title. To this end she relies upon the above-quoted declarations in the opinion in 149 Cal, as the "law of the case." The matter then before the court was an appeal from an order denying probate. The record of the proceeding in the superior court (a part of which was offered in evidence on the hearing of the account) shows that the refusal to admit the alleged will to probate was based upon a finding that the paper had not been published as a will. This want of one of the statutory requisites to the making of a will is also referred to in the opinion of this court, and might well be treated as the true basis of the ruling there made. We may assume, however, for the purposes of this case, that the ground, or at least one of the grounds, of the earlier decision, was that the paper was on its face a present transfer, rather than a testamentary disposition. It may also be assumed, though we do not decide, that after an appeal from an order denying probate, an appeal from an order settling an administrator's account is so far

doctrine of the law of the case may be deemed applicable.

Taking it as established, for the purposes of this appeal, that the paper in question purports to effect a present transfer, subject to a postponement of enjoyment, of the grantor's interest in certain property, the question whether or not it was so executed and delivered as to accomplish this purpose, still remains. The former opinion did not undertake to dispose of this issue. Indeed the court expressly declined to dispose of it by saying, at the close of the opinion, "whether or not the instrument is effective for the purpose intended is not in question here. If it should be held to be inoperative for that purpose, that fact would not turn the deed into a will." The paper recites that it is made in consideration of the sum of $5, "as also for and in consideration of the love and affection, and for the better maintenance of Louisa Hall." It is not pretended that any money or other thing of value actually passed between the parties, and the recital of a nominal consideration does not conflict with the obvious conclusion that the transaction, if valid at all, was intended to operate as a gift. "A gift is a transfer of personal property, made voluntarily, and without consideration." Civ. Code, § 1146. Where a gift inter vivos is evidenced by a writing duly executed by the donor, the property need not be actually delivered. The requirement of delivery has application only to verbal gifts. Civ. Code, § 1147; Ruiz v. Dow, 113 Cal. 490, 496, 45 Pac. 867; Driscoll v. Driscoll, 143 Cal. 528, 77 Pac. 471. But no gift of personal property (except a donatio mortis causa) is complete and effectual unless there exists an intent, on the part of the owner, to completely divest himself of dominion over the property. Denigan v. Hib. S. & L. Soc., 127 Cal. 137, 59 Pac. 389; Robinson v. Mutual Sav. Bank (Cal. App.) 95 Pac. 533. In this respect there is no distinction between verbal gifts and those evidenced by a writing. "To constitute such a gift [i. e., one inter vivos]," as is said in Zeller v. Jordan, 105 Cal. 143, 38 Pac. 640, "there must be an immediate transfer of the title, and the donor must relinquish all present right to or control over the thing given." If such right or control be immediately surrendered, the gift may be complete, although possession is not taken, or intended to be taken, by the donee until some future time. Ruiz v. Dow, supra; Driscoll v. Driscoll, supra. But in every case, although the writing may by its terms purport to presently pass the title, the validity of the attempted gift will depend upon the intention of the alleged donor. Knight v. Tripp, 121 Cal. 674, 54 Pac. 267. If he intended to and did divest himself of all control over the property, the gift is complete. What the intent was is a question of fact, to be determined, like other questions of fact, by the trial court or the jury, upon all the evidence in the case. In

made before or after the transaction, are admissible. Ruiz v. Dow, supra.

It is clear that, on the appeal from the order denying probate, this court did not assume to decide whether or not Hall in fact intended to make a complete gift of the property to his wife. What was there said regarding the "purpose of the grantor" had reference to the construction of the writing itself. We are therefore here confronted, for the first time, with the question of intent, in so far as such intent is a factor in the validity of the alleged gift. The evidence contained in the record shows that Hall did not do any act whatsoever to transfer his said bank account to his wife except to execute and deliver said document. He did not give or make any assignment, check, or order to his wife, and never at any time gave her any possession, delivery, or control of the said deposit. On the contrary, he at all times retained in his own possession the passbook, and retained and exercised the absolute and exclusive management and control of his said bank account, depositing to and drawing from the same from time to time. It appears that the instrument was drawn by an attorney under instruction from Mr. Hall; that at the time of its execution and delivery Hall said that he wanted his wife to have what was left of his property at the time of his death. There can be no question that on these facts the court was fully justified in concluding, as it did, that the money on deposit did not pass to Mrs. Hall, but that it was a part of Hall's estate. The intent of the alleged donor being a question of fact, the determination of the lower court must stand on appeal, if based upon any substantial evidence warranting the inference that an immediate divesting of ownership and dominion over the property was not intended. The declaration of Hall that he wanted Mrs. Hall to have all that might remain at his death was certainly consistent with an intent on his part to retain the absolute ownership during his lifetime and to have title pass only upon his death. This interpretation of the circumstances attending the execution of the paper is supported by his subsequent conduct. While a contrary conclusion would probably have been justified by the evidence, the one that was reached was in no degree unreasonable or contrary to the showing made. It might be suggested that Mrs. Hall's title could be upheld on the theory that the transaction had the effect of making Hall or the bank a trustee for her benefit. Booth v. Oakland Bank of Savings, 122 Cal. 19, 54 Pac. 370. But to accomplish this result it is essential that there be an intent to create a trust, and the evidence above. recited certainly did not require a finding of such intent. Noble v. Learned (Cal.) 94 Pac. 1047.

Some doubt is suggested by the appellant as to the power of the court, in a proceeding

of this kind, to adjudicate, as between the estate and the administratrix, the title to property claimed by the latter adversely to the estate. Whether or not the order here appealed from could be regarded as conclusively determining this question of title, there can be no doubt that the superior court has jurisdiction, in settling the accounts of an administrator, to determine the amount of money or property of the estate that has come into his hands, and to charge him therewith. "If he is improperly charged, his remedy is to appeal from the decree settling his final account. I know of no other way in which it can be reached." In re Burdick, 112 Cal. 387, 44 Pac. 734.

The orders appealed from are affirmed.

We concur: SHAW, J.; ANGELLOTTI, J.

WINN v. NEVILLE et al.

(Supreme Court of Kansas. Nov. 7, 1908.) 1. BILLS AND NOTES (§ 489*)-ISSUES, PROOF, AND VARIANCE.

Where defendant did not plead that he was fraudulently induced to sign a note, but merely pleaded a misapprehension of its terms, proof of false representations concerning its contents was irrelevant.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1592; Dec. Dig. § 489.*] 2. TRIAL (§ 325*) - INSTRUCTED VERDICT –

POLLING JURORS.

A party has no right to have the jury polled respecting an instructed verdict. [Ed. Note.-For other cases, see Trial, Cent. Dig. 765; Dec. Dig. § 325.*]

Error from District Court, Kearny County; Wm. Easton Hutchison, Judge.

Action between T. H. Winn and J. M. Neville and another. From the judgment, said Winn brings error. Affirmed.

E. R. Thorpe, W. R. Hopkins, and R. J. Hopkins, for plaintiff in error. A. Hoskinson and R. E. Melvin, for defendants in error.

PER CURIAM. The propriety of the district court's conduct in this case depends chiefly upon whether the contract between the vendor and vendee was obtained through the fraud of the agents who conducted the negotiations. The contract is assailed at two points: That the title to the land affected was not good, as it should have been; and that the land was mortgaged, as it should not have been. There is no evidence that the title was not good. The only evidence offered bearing upon the question was that part of the land was held by tax title; whether good or bad is not suggested. The plaintiff accepted the contract with full knowledge of an outstanding mortgage on a statement of the vendor looking to its release. Under these circumstances, the evidence failed to show that the contract was fraudulently induced, and none of the testimony offered and

rejected could have filled the gaps in the defendant's case.

When a proper contract had been signed, the work of the agents was at an end, whether they undertook to produce a buyer or to make a sale. The attempt to prove an agreement that no commission should be paid until deeds were exchanged failed because the defendant would not testify that such was the arrangement. Whether he could impeach his note given for the commission by showing a prior parol agreement contradicting its terms need not be considered. The defendant did not plead that he was fraudulently induced to sign the note. He merely pleaded a misapprehension of its terms, and proof of false representations concerning its contents was irrelevant to the issues.

Granting that, if the land involved were the vendor's homestead, his wife should have signed the contract, there is no proof that it was his homestead.

A party has no right to have the jury polled respecting an instructed verdict.

The judgment of the district court is affirmed.

MICHNER et ux. v. FORD. (Supreme Court of Kansas. Nov. 7, 1908.) 1. TAXATION (§ 704*)-TAX SALE-REDEMPTION NOTICE.

Where a delinquent tax sale is held on September 4, 1900, and the final redemption notice states that lands sold at that sale must be redeemed on or before September 4, 1903, or they will be deeded to the purchasers, such notice gives full three years after the sale for redemption, and is not void.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1423; Dec. Dig. § 704.*]

2. TAXATION (§ 788*) — TAX SALE - REDEMPTION NOTICE.

Where a tax deed recites the amount which the grantee in the deed paid for the certificate, giving the date, and also states the amount of subsequent taxes paid, without giving the date of payment, and the final redemption notice gives as the amount necessary to redeem, a sum claimed to be in excess of the proper amount, the deed will not be deemed invalid for that reason, if the amount of these payments, with interest computed on each sum from the earliest date at which it could have been legally paid, equals or exceeds the sum stated in such notice. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1559-1563; Dec. Dig. § 788.*] 3. TRIAL (8 68*)-APPLICATION TO INTRODUCE EVIDENCE-DISCRETION OF COURT.

Where the district court, after the trial of a case without a jury, takes it under advisement, and one of the parties on the next day, when court is in session, makes application to introduce further testimony, which is refused for the reason that the evidence should have been presented at the proper time, this court cannot say that such action of the court is an abuse of discretion and erroneous.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 156, 159, 160, 166; Dec. Dig. § 68.*] (Syllabus by the Court.)

GRAVES, J. This action was commenced in the district court of Hamilton county to recover possession of the real estate in controversy. The plaintiff was James P. Ford, whose right to the land depended upon a conveyance from the holder of a tax deed. The defendants were in possession of the land, claiming title from the patentee. It is conceded that they are the owners unless cut out by the plaintiff's tax deed.

On the trial, the plaintiff introduced his tax deed and the conveyance to himself by the tax deed holder, and rested. The defendants introduced conveyances showing a chain of title from the government to themselves, and then, to overthrow the tax deed, offered the delinquent tax notice, which reads: "Notice is hereby given that on Tuesday, the 4th day of September, A. D. 1900, and next succeeding days, I will sell at public auction at my office in Syracuse, Hamilton county, Kansas, as much of the following described tracts of land and town lots as may be necessary to pay the taxes and charges thereon due for the year 1899. Dated at Syracuse, Hamilton county, Kansas, this July 10th, 1900." Then follows a list of lands, among which is the tract in controversy. They also offered the redemption notice, which reads: "Treasurer's Office, Hamilton County, Kansas, February 28th, 1903. The taxpayers of Hamilton county, Kansas, will please take notice that the following list of unredeemed lands and town lots will be conveyed to the holders of tax sale certificates for the same unless such lands and town lots are redeemed on or before September 4th, 1903. W. P. Humphrey, Treasurer Hamilton County, Kansas. [Then follows list of lands and town lots and amounts required for redemption and the following entry:] Augusta E. Taylor n. hf of S. E. qr. 30-23-40. Amount due, $22.39."

The only purpose for introducing these notices was to show that full three years did not intervene between the tax sale and the last day for redemption. It is contended that the last day for redemption in the final notice should have been September 5th, as the owner would have all the day of September 4th in which to redeem; the three years not expiring until the close of that day. We think that the language "on or before September 4th" is sufficient, and would give all of the 4th of September in which to make redemption, and therefore full three

years are given by these notices. Ireland v. George, 41 Kan. 751, 21 Pac. 776.

It is further contended that the amount stated in the final redemption notice as the amount necessary to redeem ($22.39) is too large, and this error makes the deed void. No basis is furnished upon which to test the accuracy of this claim. The time when the payment of the subsequent taxes were paid is not given, and therefore the computation of interest cannot be made with satisfactory accuracy; but the deed is prima facie evidence that it is regular and valid. If the interest be computed upon the certificate from the date it was issued, and upon each payment of subsequent taxes, from the earliest date at which payment could have been made, to the last day of redemption, the amount will exceed that stated in the notice. We conclude therefore, in the absence of anything to the contrary, that the amount given is correct, and that the deed is valid.

After these notices were placed in evidence, the defendants rested. The case was submitted to the court and taken under advisement for the purpose of preparing findings of fact and conclusions of law. Afterwards, on the next day before the final decision of the court, and while it was still in session, the defendants requested the court to hear further evidence from them, which it declined to do. No showing whatever was made for this request, and the court based its refusal solely upon the ground that the evidence should have been presented at the proper time. This action of the court is claimed to be erroneous. We are unable to concur in this conclusion. The particular circumstances surrounding the case do not appear. Courts must be left free to control the conduct of the business before them, and the charge of abuse of discretion cannot be sustained unless clearly shown. We cannot say that it is improper for a trial court to require trials to be finished when the parties rest and submit the case.

We are unable to find error in the record, and the judgment of the district court is affirmed.

CALHOUN v. ANDERSON et al. (Supreme Court of Kansas. Nov. 7, 1908.) MORTGAGES (8 32*) - DEED ABSOLUTE IN FORM.

Where, at the time of the execution of a deed, the grantee and grantor execute a contract, by which the former agrees to sell, and the latter agrees to buy, the land for the amount constituting the consideration of the deed, the transaction is at least presumptively a mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] (Syllabus by the Court.)

Error from District Court, Kingman County: P. B. Gillette, Judge.

Cross-petition by Humphrey Calhoun, in action between Ed. Anderson and others. From the judgment, Calhoun brings error. Reversed and remanded.

Thornton W. Sargent and Geo. L. Hay, for plaintiff in error. J. A. Brubacher and James Conly, for defendants in error.

MASON, J. In the course of litigation involving other matters, Humphrey Calhoun, on December 31, 1904, filed an answer, which included a cross-petition against a codefendant, Ed. Anderson, asking that an instrument in the form of a deed from Calhoun to Anderson be declared to be in effect a mortgage, that the amount of the debt thereby secured be ascertained by an accounting, and that he be permitted to redeem the land. On the trial of the issues so tendered, the district court sustained a demurrer to the evidence of Calhoun, and he prosecutes error.

That the plaintiff in error has taken the proper steps to procure a review is shown only by a journal entry, which was made without notice to the adverse party, nunc pro tunc, and was not based on any memorandum, minutes, or other written data. The defendant in error on this ground challenges the sufficiency of the record. It has been determined, however, that a district court upon its own knowledge of the facts, and without notice to any one, may at any time make its records speak the truth and show what had actually been done at some earlier date, even where no immediate entry was made regarding it. Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594.

Calhoun's evidence, among other things, tended to show these facts: He had given a mortgage on the land involved to a sister of Anderson, and he owed Anderson personally an amount sufficient to make a total indebtedness of $10,285, subject to certain deductions claimed by him on account of usurious interest and other matters. He deeded the land to Anderson in consideration of this debt, and at the same time, December 15, 1902, received from him an instrument, the substantial part of which read as follows: "Said party of the first part (Anderson), for and in consideration of ten thousand two hundred and eighty-five dollars ($10,285) and taxes - dollars, of which eleven hundred dollars ($1,100) is in hand paid by said second party (Calhoun), the remainder of said consideration to be paid as hereinafter provided, hereby promises and agrees to sell and convey, on the 1st day of January, 1905, at Cheney, Kansas, time being of the essence of the contract, by good and sufficient warranty deed conveying an indefeasible estate in fee simple, to said party of the second part, his heirs and assigns, the following described real estate: ** * The said Humphrey Calhoun, party of the second part, in consid