like a sane man; his conversation was iutelligent; there were times when Hill was under the influence of liquor, when his mind was not sound. Hill told witness that Woolley wanted him to revoke the "Blood-Aiken" will. Hill told witness to give Woolley, his wife and children one dollar each; witness suggested larger sums for the wife and children, saying he didn't think they should suffer for Woolley's wrong-doing; but Hill said: "No, I'll give them but a dollar apiece." Hill was not a man easily susceptible to influence; it was very hard to influence him; witness never said that if Hill didn't do as he wished he would put him in a lunatic asylum; but did insist on Hill's leaving Vallejo street and getting into a better locality. H. J. Stafford, a justice of the peace of San Francisco, and an attorney at law, knew Hill; met him two or three times before last. election (1884); had conversation with him on general topics; upon politics so far as it was safe for witness to venture; Hill was very radical in his views, and witness, being of opposite opinions, didn't think it prudent to pursue such discussions; Hill was sane; there was nothing about him to indicate insanity, and witness never had a suspicion of Hill's sanity; he was a man of very strong convictions, and wanted to argue, ready for argument, clear and logical in his process of reasoning.

The foregoing is a fair view of the substance of the testimony on both sides.

So far as the execution of the documents propounded are concerned, they were both executed in all particulars conformably to the statute: Civ. Code, secs. 1276, 1278.

The case of the contestant, with respect to the soundness of mind of the testator, is not established; the great preponderance of evidence being that he was at all times, when not under the influence of liquor, intelligent, clear, and strong in mental faculties, with a retentive memory and a positive will, the physicians particularly are upon this point plain-spoken; Drs. Cachot, Perrault, Gerry, and Dorr saw much of him and speak with precision and emphasis; Drs. Foster and Whitney each but once, and under circumstances not so favorable as the others for absolute judgment. All these gentlemen are in good professional standing and entitled to credence and respect, but the conditions under which the two last named saw their patient differ from the others to such an extent as to render their testimony much less valuable; and their testimony as experts is entitled to no greater consideration than that of the other physicians who oppose their opinions. I do not think any other conclusion can fairly be drawn from the evidence than that Thomas J. Hill was a man of sound mind. Even if at times vacillating and vagarious, as the witnesses Lynch and Post in substance said, and other witnesses on the same point corroborated, the general tenor of their testimony supports the theory of sanity; Barthrop, James Hill, James H. Adams, and John Hogan, are clear upon this question; and they saw the decedent frequently during his latter years; two of themBarthrop and Adams-being his comrades in the Mexican war; in

addition, is the evidence of Miss Morrison and Mrs. Hennings, which is assailed as interested; but the nature of their interest is not such as to discredit them; that they are "friends of the family" is not, of itself, sufficient to justify a judge or jury in rejecting their testimony. I do not deem it necessary to advert further to the testimony upon this point, an abstract of which I have endeavored to make in the preceding pages; nor is it necessary to quote here long definitions of soundness or sanity of mind in order to show how far short contestant's proofs fall in establishing his allegation. I shall only cite, Estate of Black, Myr. 27, 28; I Redfield on Wills, 59, 60, et seq; 1 Jarman on Wills, 103; Estate of Crittenden, Myr. 51; 1 Redfield on Wills, 84, 85; Estate of Tittel, Myr. 12.

The testator seems to have had some reason, arising from his nephew's conduct, for his antipathy towards him; the evidence of Kane and Post is clear upon this point, the latter especially strong, and there is other testimony to same purport, and explaining this fact as the secret of Hill's affection for the erratic youth, Conroy. Belief based on evidence, however slight, is not delusion. The testator's mind was not "possessed" in this particular: Estate of Tittel, Myr. 14.

As to the allegation of habitual inebriety, while it appears that the decedent was profound in his potations, it is not established that . his habits so impaired his mind as to incapacitate him from making a will at the times of the execution of these instruments. Notwithstanding his frequent and copious indulgence in liquor, without which he declared life not worth living, he seems to have retained an intelligence and an interest in human affairs that made him to many persons an entertaining companion. Mr. Post spent hours with him and others visited him on account of his agreeable converse. The testimony of the physicians Gerry, Perrault, Cachot, and Dorr is certainly worth considering with their knowledge of Hill's habits. Upon this issue, the Estate of Black, Myr. 27 etc., is very instructive; and the work of Balfour Browne on the Med. Jurisp. of Insanity, secs. 351-360, and Dr. Ordronaux's Judicial Aspects of Insanity, 382, may be consulted with profit. The case of Peck v. Cary, 27 N. Y. 9, should also be read. Iulke v. Adam, 1 Redf. 456, and O'Neill v. Murray, 4 Id. 318, are good cases in support of these views; and it is not necessary to add to those cited.

Was either will made under undue influence? Civ. Code, sec. 1272, 1575.

Counsel for contestant made strenuous contention that the circumstances surrounding Hill, at the time of the execution of those instruments, were such as to carry the inference that the wills were not the offspring or emanation of the mind of the testator; but that the craft of Counsellor Haven, the arts and artifices of Aiken, and the manner in which he practised upon the susceptible nature and the guileless heart of Hill, the subtle influence of the presiding genius of the Connor household, "the fairy godmother of the boy Conroy," Miss Maggie McCann, over the blind paralytic, and the whole atmosphere

of undue influence surrounding Hill, produced the wills by which comparative strangers acquire his estate to the disherison of the next of kin.

But it does not appear that there were such ties between Woolley and Hill as should raise a presumption of obligation, on testator's part, to him; his life with Woolley was, on the whole, not a happy one; and there was a great change when the transfer was made to the Connor house; the last days of his life were made cheerful; and in this, all the witnesses agree who visited Hill at his home with that family. Whatever the motive, it was the fact that Hill benefited bodily and mentally by the change. I think a careful examination of the facts in evidence will fail to substantiate the averments of contestant that the will was procured to be made by undue influence; and it will not do to base a conclusion upon surmises and suspicions of sordid motives for kind acts where there is no direct evidence to fortify such deduction. As to what constitutes "undue influence," the counsel must be content with citations, as everything (even a judicial opinion) must have an end. Judge Myrick's valuable probate reports furnish excellent and convenient definitions and illustrations and references: Estate of Black, Myr. 31; 1 Jarman on Wills, 132, 133; 1 Redfield on Wills, 518, 520; 1 Jarman on Wills, 134; Children's Aid Soc. v. Loveridge, 70 N. Y. 387. The opinion of Miller, J., in this last-cited case is worthy of perusal: See 1 Jarman on Wills, 141; 1 Redfield on Wills, 523, 524.

The allegations of undue influence are not established; and the like remark may be made with respect to the charges of fraud: Civ. Code, sec. 1572. Lack of time and pressure of other duties compel me to abbreviate the discussion of the principles involved in this case, and to refer counsel to the summary of the evidence to support the court's conclusion that the wills should be admitted to probate. Let an order to that effect be prepared: 1 Redfield on Wills, 435.

INDEX.

ABANDONMENT.

See MARRIED WOMEN, 3; LARCENY, 5, 6.

ABATEMENT.

1. PLEA IN ABATEMENT.-The defendant pleaded in abatement that the plaintiff was not
a citizen of the state of Nevada, as he alleged, but of California, to which the plaintiff
replied; when the plea was duly set down for hearing, without any evidence being
taken or offered in support thereof, and overruled, and the defendant allowed a day
within which to answer to the merits. Held, that the plea was properly disposed
and that of, the question of the plaintiff's citizenship, for the purposes of the case,
was thereby determined, unless a rehearing was asked for and allowed, and that
the same defense could not be made again in the answer to the merits. Sharon v.
Hill. (U. S. Cir. Ct.) Cal. 1.

ACCOUNTING.

See PARTNERSHIP, 6.

ADMINISTRATOR.

See EXECUTORS AND ADMINISTRATORS.

ADMIRALTY.

1. JOINDER OF CAUSES OF ACTION IN REM AND PERSONAM.-The admiralty rules from 12
to 20, inclusive, relating to joinder of causes of action, do not apply to cases not
therein enumerated; but the same, under rule 46, may be proceeded with, in this re-
spect, in such manner as the court may deem expedient for the administration of
justice. The Director. (U. S. Dist. Ct.) Or., 829.

2. SUIT ON A CHARTER-PARTY.--In a suit by a shipper for the non-performance of a con-
tract of affreightment, the facts which establish the liability of the master also give
the libelant a lien on the vessel for the amount of his claim, and therefore it is proper
and expedient that the proceeding against the owner or the master and the vessel
should be joined in one libel. Id.

3. REPLEVIN IN ADMIRALTY.-When the possession of personal property has been changed
by means involving the breach of a maritime contract concerning the same, or such
possession is wrongfully held contrary thereto, the owner or other person entitled,
under the circumstances, to the possession thereof, may maintain a suit in admiralty
to obtain the same. Id.

4. DAMAGES GENERAL AND SPECIAL.-Damages that are not the necessary result of the
act complained of, and therefore not implied by law, are special, and the facts con-
stituting them must be particularly stated in the libel. Id.

ADMISSION.
See EVIDENCE, 1.

ADVERSE POSSESSION.

1. REDEMPTION OF MORTGAGE--ADVERSE POSSESSION BY MORTGAGEE-FINDINGS.-A
finding that the defendant had been in the sole and exclusive possession and owner-
IX-3

877