and the influence of his statement upon his private fortune. Under such circumstances in the case of Wight v. Wight, before Court Commissioner Robert C. Rogers, in 1866, Jeremiah Whalen, the decedent, swore that he was a married man and lived in this house, northeast corner Kearny and Jackson streets.

The applicant here was examined in the same controversy before Commissioner Rogers, and testified that she was a married woman living with her husband, and that her name was Henrietta C. Whalen, and that she lived in that house at the time of her testimony. She signed her name "Henrietta C. Whalen." It should seem that these

two persons were no other than the decedent and the applicant; and by their own statements contemporaneously made, and in the same proceeding under judicial oath, they sustained to each other the relation of husband and wife. These declarations seem to me to be sufficient corroboration of applicant's testimony as to the contraction and consummation of the marriage and the subsequent continuous cohabitation for years. In addition, while she was absent from this city Mr. Whalen constantly corresponded with her, although, except in one instance, he did not address her as "my dear wife," or subscribe himself as husband, yet he superscribed his letters to her by his own surname, "Mrs. Henrietta C. Whalen." That is a public recognition, which was fortified by declarations made more than once to persons who addressed him; Mr. John H. Harney, for one, a fellow clerk in a public office, when the latter found on Mr. Whalen's desk a letter so superscribed; also at another time to Mons. Perrier, the restaurateur. These declarations were made at a very late date long after the informal nuptials. Mrs. Whalen, for reasons already suggested by her, left this city and went into the interior and to the mountains, and pursued an irregular life for years; * * * but, as I have had occasion to say in another case,

once establish the re

lation of husband and wife between these parties and the` subsequent conduct of either of them, which does not culminate in a legal dissolution, cannot affect the judicial determination of the question of their status." She may have misconducted herself, may have been a bigamist,

* *

*

subsequently, still her legal rights were vested by the law, which Courts sit to administer, not to set aside; the Judge's personal views as to such marriages or such misconduct should not affect the Court's administration or application of the law. The Court finds the fact and applies the law; it finds the facts proved as alleged, and that the applicant is the surviving wife of the decedent. intestate, Jeremiah Whalen. His own conduct inconsistent with his relation to Henrietta-the fact that he led Mrs. Stees, a witness in this proceeding, to believe he was unmarried, does not detract from the strength of what has been said. Mrs. Stees' testimony may be taken as true, and, so far as this discussion is concerned, there is no necessity of imputing inveracity to any witness in this proceeding; Mrs. Stees' statement need not be challenged -her own eccentricity of matrimonial conduct has no bearing upon her credit as a witness; and accepting her testimony as truthful, it would appear that Jeremiah Whalen, for the purpose of deceiving her and contracting an alliance with her, discarded his first spouse and led the witness to believe he was a free man. Cases of that kind are so numerous that it is not necessary to dilate thereupon.

So far as such a marriage can or need be established, it has been established in this case. The prayer of the petitioner is granted. Let the appropriate decree be framed and submitted to the Court.

Estate of JEANNETTE HELD, Deceased.

[No. 3,025. Decided June 30, 1884.]

Application for Special Letters of Administration.

Special Letters-Who Entitled to-Applicant for-Want of Integrity of-Improvidence of-Must be Proven-What does not Constitute C. C. P., Sections 1350, 1369, 1413, Construed.

1. In making the appointment of a special administrator, the Court must give preference to the person entitled to letters testamentary or of administration (Section 1413, C. C. P.)

2. No person is entitled to serve as executor or administrator who is adjudged by the Court incompetent to execute the duties of the trust by reason of improvidence or want of integrity (Subdivision 3, Section 1350, C. C. P.; Subdivision 4, Section 1369, C. C. P.)

3. Where an applicant for special letters is prima facie entitled thereto, his application must be granted, unless his alleged incompetency is clearly established; the Court has no discretion in the premises. 4. See facts below which are held not to establish improvidence or want of integrity in the applicant. [E. T.]

On June 9, 1884, John E. Hammersmith filed his petition for special letters upon the estate of the above named decedent. He alleged that she died in San Francisco, a resident thereof and leaving estate therein, on December 9, 1883; that she left a last will and testament dated July 2, 1883, wherein he, petitioner, was named as executor; that he was a son of decedent; that on December 19, 1883, he filed said will together with a petition for its probate and for his appointment as executor thereof, but that the probate of said will was being contested and a special administrator was necessary; petitioner based his application on Sections 1411, 1412 and 1413, C. C. P., and the petition contained the further usual averments.

This application was opposed by Amelia Haxe, a daugh

ter of deceased, who asked that special letters be issued to the Public Administrator.

It was asserted that the applicant claimed certain property to be his own, which was alleged to be a part of the estate of the decedent, and that he claimed interests adverse to said estate; also that he had without right or authority assumed to take charge of the estate of decedent since her death, and had improvidently managed the same; as to the claim of the applicant to certain property alleged to belong to the estate, it was shown that shortly before her death the decedent had executed a deed to him of certain real estate, under which he asserted title in his own right, and which deed was claimed to be void on various grounds; and the invalidity of this deed was set up as a circumstance to prove the lack of integrity of the applicant; as to his improvidence, it was claimed that while he had assumed control of the estate, he had permitted certain premises belonging to it to remain idle for some time, and that this was "improvidence" within the meaning of the Code; the applicant had also expended $1,000 of the moneys of the estate as a retainer to his attorneys, on the contest of the will, and it was claimed that he had no right to pay attorneys' fees out of the estate until he should be appointed executor, and that this was also "improvidence."

Mr. Thos. I. Bergin, for John E. Hammersmith, appli

cant.

Mr. Geo. Flournoy, for Mrs. Amelia Haxe, opposed. Mr. Thos. V. O'Brien, for Gustave Held, absent heir. Mr. Thos. F. Barry, for Haxe minors.

Mr. H. E. Highton, for Russ minors.

COFFEY, J.-Applicant is the son of decedent and named in the will offered for probate as executor. He is of legal age and prima facie competent and eligible under the statute. Section 1413, C. C. P.

It is suggested that he is not a proper person to take letters by reason of lack of integrity and also "improvidence" (Section 1369, C. C. P., s. 4); but this is not established; it is "not proven;" and, in view of that, the Court has no discretion to deny this application. Granted.

Estate of PETER G. PARTRIDGE, Deceased. [No. 3,308. Decided August 26, 1886.]

Order to Show Cause why Administrator Should not Inventory Certain Bonds.

Inventory of Decedent's Estate-Duty of Administrator to Make -Accountable for Duty-Property Subject to Adverse ClaimMust be Inventoried-Administrator Cannot be Neutral-Court Cannot Interfere with Duty-Power of Court to Reject or Modify an Inventory-Disputed Titles not Triable in Probate Forum— Section 1443, C. C. P., Construed.

1. An administrator must, under the statute, make a true inventory and appraisement of all estate of the decedent coming to his possession or knowledge. And the administrator is accountable with respect to this duty (Section 1443, C. C. P.)

2. If any portion of a decedent's estate is the subject of an adverse claim, it is prudent on the part of the administrator to add a memorandum to the inventory thereof, stating the asserted claim. But the property must be inventoried; the administrator cannot stand neutral because the decedent's title is disputed.

3. An administrator cannot omit to inventory property said to belong to his intestate, which is the subject of an adverse claim, on the pretense that he wants to stand neutral between the estate and the adverse claimant; leaving the merits of the controversy to the Court's determination. The administrator cannot assume an attitude of neutrality; the statute points out his duty; and for the Court to pass upon the merits of the adverse claim would be to assume a jurisdiction which, in probate, it cannot exercise.

4. A Court of probate ought not, it seems, reject an inventory of a decedent's estate, or order it modified, because it contains property