own land by showing that the work was done by a contractor.

3. Where the owner of land hires a contractor to excavate therein, and no precaution for the lateral support of adjoining land is taken, as required by Civ. Code, § 832, both owner and contractor are liable to the adjoining owner for a subsequent falling of his land.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by Annie Green against Peter A. Berge and Albert E. Buckman. Plaintiff had judgment against defendant Berge, and defendant Buckman had judgment against plaintiff for costs, and plaintiff appeals. Modified.

with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney." Is appellant's codefendant an adverse party? The appeal cannot result in a modification of the judgment against him. If the appeal be successful, the only possible result would be either that a new trial would be awarded as to the appellant, or a joint judgment would be entered against both defendants in lieu of the present judgment against Berge. This would in no way af fect the liability of Berge upon the judgment, though it might give him the advantage of a

TEMPLE, C. This appeal is from a portion of the judgment upon the judgment roll. The action was brought to recover damages for excavating upon a lot adjoining plaintiff's lot, so negligently that the ground constituting a portion of plaintiff's lot fell into the excavation of its own weight. Berge was the owner of the lot upon which the excavating was done, and Buckman performed the work under a contract. The case was tried without a jury, and, among other facts, the court found that on the 14th of May, 1891, Berge entered into a contract with Buckman, in writing, whereby, for a stipulated price, Buckman agreed to grade his lot; that in the contract nothing was said in regard to the duty of supporting the bank towards plaintiff's lot; that Buckman performed the work to the satisfaction of Berge, and in all respects in a careful, skillful, and workmanlike manner; that the work was completed on the 14th day of August, 1891, and on that day was accepted by Berge, who then gave Buckman a writing in which he stated that the work was done to his satisfaction; that Berge did not, after the completion of the work, provide for any lateral support to plaintiff's land, which, by the excavation, had been deprived of its natural support; that in the month of December a great part of the earth of plaintiff's lot, solely by its own weight, and by reason of its said lack of lateral support, gave way, and fell into the excavation, to the injury of plaintiff in the sum of $1,000. Thereupon the court gave judgment in favor plaintiff against Berge for $1,000, but also ordered judgment in favor of Buckman against plaintiff for his costs. Plaintiff appeals from that part of the judgment which is in favor of Buckman, and now contends that, upon the findings, she is entitled to a joint judgment against both defendants for the amount of damage found by the court.

1. Respondent makes a preliminary objec- | tion to the jurisdiction of this court to entertain the appeal, on the ground that the notice of appeal was not served on the codefendant of appellant. "An appeal is taken by filing

This question was decided in Senter v. De Bernal, 38 Cal. 637, where it was said, quoting from Thompson v. Ellsworth, 1 Barb. Ch. 627: "The adverse party * means the

party whose interest in relation to the subject of appeals is in conflict with the reversal of the order or decree appealed from, or the modification sought for by the appeal." This case has been often referred to with approbation since, and, indeed, it would be difficult to reach any other conclusion.

2. It is contended by the respondentand this appears to be the view taken by the lower court-that the duty of sustaining the land of the adjoining owner rested upon the lot owner who caused the natural support of the land to be removed; that Buckman had a right to presume that Berge would perform his duty. He undertook to do a part of the work only, and there was nothing unlawful in what he did. If there was anything unlawful, it was on the part of the lot owner who did the excavating, but did not take measures to support the adjoining land. The land did not cave in until the work had been completed and accepted. The lot owner could then have added the support, and Buckman had a right to presume he would do so. It was found that the work was done in a careful manner, and that there was nothing in the mode of doing the work which increased the liability of the land to slide into the excavation. This view seems plausible, but, stated in another way, it does not have that appearance. Buckman removed the natural support of the soil. This support was an incident to plaintiff's ownership. It was not lawful to do this except by the owner of adjoining land, nor then except by taking reasonable precautions to sustain the land. Civ. Code, § 832. No such precautions were taken, and the work was therefore unlawful, and caused the injury. The authorities sustain this view. In Dalton v. Angus, L. R. 6 App. Cas. 740, the lord chancellor said: "The action was brought by reason of the falling of the plaintiff's house through the excavation of the adjoining land of the commissioners in the course of certain work executed for them by the appellant, Dalton, under a con

tract, and for Dalton by subcontractors. The commissioners disputed their liability for the acts of Dalton, and Dalton disputed his liability for the acts of his subcontractors. The same point arose under very similar circumstances in Bower v. Peate, 1 Q. B. Div. 321, and was decided adversely to the contention of appellants. It follows from that decision (as to the correctness of which I agree with both the courts below) that, if the plaintiffs are entitled to recover at all, they are entitled to recover against both the commissioners and Dalton." In Aston v. Nolan, 63 Cal. 269, the work of excavating was done under a contract similar to the contract in this case; that is, it was a contract for excavating, which contained no provisions in regard to supporting the land of the adjoining lot. It was held that the contractor was liable, and that, since the contract implied that the work should be done in a lawful manner, that is, in taking reasonable care to support the earth of the adjoining lot, the owner of the lot was not liable. Some would be disposed to question that decision so far as it holds that the lot owner could thus relieve himself from the duty he Iowed to his coterminous owner. That point, however, is not involved here. The case is authority for the proposition that the contractor is responsible. Independently of the statute, the adjoining lot owner who caused the excavation to be made would be responsible for any damage which might result, irrespective of the question of negligence in making the excavation. Gilmore v. Driscoll, 122 Mass. 199; Foley v. Wyeth, 2 Allen, 131; Carlin v. Chappel, 101 Pa. St. 348; Richardson v. Railroad Co., 25 Vt. 465. Here the only neglect necessary to give a cause of action is the neglect to furnish the support required by the statute (Aston v. Nolan, supra; Conboy v. Dickinson, 92 Cal. 600, 28 Pac. 809); and, of course, to make the excavation otherwise must be negligence. A landowner has an interest in adjoining land for the lateral support of his soil. This is a limitation upon the rights of landownWhoever deprives him of this support for his land, otherwise than as the statute has prescribed, performs an unlawful act. The general rule is that all who unite in such acts are wrongdoers, and are responsible in damages. Respondent knew, or should have known, that to make the excavation without supplying the support was unlawful. Having participated in it, he cannot avoid responsibility by pleading that he did the work under a contract. Except the case of Aston v. Nolan, supra, all the authorities I have been able to find hold that the landowner who causes such an excavation to be made cannot relieve himself of responsibility by any contract he could make. Cooley, in his work on Torts, speaking of the exceptions to the rule that the master is not liable for the negligence of an independent contractor, or the servants of such contractor,

ers.

says: "He must not contract for that the necessary or probable effect of which would be to injure others, and he cannot by any contract relieve himself of duties, resting upon him as owner of real estate, not to do or suffer to be done upon it that which will constitute a nuisance, and therefore an invasion of the rights of others." In a note to this he cites the case of such an excavation as an instance. But, admitting that Aston v. Nolan goes too far, I do not see how that will relieve Buckman. It makes it a case where both are wrongdoers, and both responsible. I think the judgment should be modified so as to make it a joint judgment against both defendants.

1. The holder of a claim against a decedent's estate can recover only the amount for which the claim was presented, and rejected by the executors or by the judge of the superior court.

2. Evidence of admissions by deceased that in a settlement with one who owned property jointly with him he had allowed such person a certain sum to be paid plaintiff for services rendered by him in trying to effect a sale of the property, is insufficient to establish the value of services rendered by plaintiff for decedent himself.

Department 1. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by William Lichtenberg against McGlynn and others, as executors of the estate of James M. Donahue, deceased, to recover for services rendered decedent. From a judgment in favor of plaintiff the executors appeal. Reversed.

Stanly, Hayes, McEnerney & Bradley and Chas. F. Hanlon, for appellants. Lindley & Erckhoff, for respondent.

HARRISON, J. The defendants are the executors of the last will and testament of James M. Donahue, deceased, and, after letters testamentary had been issued to them, the plaintiff presented to them a claim against the estate of their testator, which they rejected, and thereupon he began this action for the purpose of having the validity of his claim established. The claim was properly verified March 13, 1891, as follows: "Estate of James M. Donahue, deceased, to Wm. Lichtenberg, Dr. Nov. 20, 1890. Το services rendered by said William Lichten

berg for said deceased, at his special instance, within two years next preceding his death, in and about effecting loans and sales for account of said deceased, $15,000." In his complaint he alleges "that within two years before his death said James M. Donahue became justly indebted to plaintiff in the sum of fifteen thousand dollars for certain work, labor, and services rendered and performed by plaintiff for defendant, and at his special instance and request, during said period of time"; and the court made a finding of fact in the terms of this allegation, and rendered judgment in favor of the plaintiff. The defendants moved for a new trial upon the ground that the evidence was insufficient to sustain the findings of the court, and upon its denial have appealed to this court.

The holder of a claim against the estate of a deceased person can bring an action therefor against the executors only after it has been first presented to such executors. Code Civ. Proc. § 1500. If his claim is rejected, either by them or by the judge of the superior court, he must bring a suit for the purpose of establishing its validity against the estate. In such action he can recover only upon the claim which has been so presented and rejected, and is not entitled in that action to recover against the executors for any other cause of action. As the plaintiff alleged in his complaint that the claim which he presented to the defendants was "for the services so as aforesaid rendered and performed by him," and the court so finds, we must assume that its findings were based upon evidence solely in support of the services named in the claim which was presented. We are of the opinion, however, that the evidence is insufficient to sustain these findings of the court. In order to sustain his claim it was necessary for the plaintiff to show that he had rendered services for the deceased within two years prior to his death; that these services had been rendered at the special instance of the deceased; that they were of the value of $15,000, or that they were rendered under an agreement, either express or implied, that he should be paid $15,000 for them. It may be that the failure to make greater proof results, as suggested by plaintiff's counsel, from the statutory inability of the plaintiff to testify in his own behalf; but this does not relieve him from the necessity of producing sufficient evidence to establish his cause of action. His incompetency to testify may be his misfortune, but the defendants' obligation is not thereby varied, and they are entitled to demand such proof before they can be called upon to pay to the plaintiff the money which is in their hands as trustees for the beneficiaries of their testator. The record fails to show that the plaintiff at any time within two years prior to the death of Donahue rendered any services to him, or for his benefit. The evidence tending to show any request for services from the plaintiff to Donahue is very mea

ger, and fails to establish any agreement between them for services to be rendered. It appears that in May, 1888, Donahue was desirous of either selling or bonding the San Francisco & North Pacific Railroad, in which he was heavily interested, and that he proposed to the plaintiff to go to Europe with him for that purpose. The plaintiff expressed his disinclination to accept this proposi tion when it was made to him, but desired to take the matter under consideration. Donahue was about to go to Los Angeles, and on the day that he left for that place sought a further interview with plaintiff, but failed to obtain it; and it does not appear that the plaintiff ever accepted Donahue's proposi tion, or that Donahue from that time had any interview or correspondence with him. Prior to going to Los Angeles, Donahue stated to Justin P. Moore the nature of the arrangement that he desired to effect with the plaintiff, viz. that the plaintiff should accompany him to New York, and that they should go from New York together to Paris, and endeavor to raise the money, either by placing bonds or by selling his entire interest in the road; and after he reached Los Angeles he telegraphed Moore that he would go directly from that place to New York, and for the plaintiff to meet him in the latter city. There is no evidence, however, that Moore saw the plaintiff at any time after Donahue left, or that he at any time communicated to him Donahue's wishes, or any proposition on his behalf, or had any interview with him in reference thereto. The plaintiff did not leave California for New York until July, and did not meet Donahue in New York, or elsewhere. Donahue went east direct from Los Angeles in May, and while in New York effected a sale of his interest in the road, and returned to San Francisco in October of the same year. While he was in New York he made inquires for the plaintiff, and found that he had gone to Europe at the suggestion of Von Shroeder, where he remained until August, 1889. Von Shroeder was the husband of Donahue's sister, who was also interested in the road, and accompanied the plaintiff to New York, defraying his expenses thither. The plaintiff did not accomplish anything for Donahue either in New York or in Paris, and there is no evidence that he attempted in either place to render him any services. There is some evidence that in the year 1887 Donahue requested the plaintiff to negotiate a loan of $50,000 for him, but it is not shown whether the plaintiff did anything thereunder, and any claim for services rendered under this request was barred by the statute of limitations prior to the death of Donahue.

It is not claimed that there was any agreement by Donahue for the amount of compensation to the plaintiff, and the value of the services rendered by him was sought to be shown by certain admissions of Donahue. These admissions consisted of statements by

him that in a settlement with Von Shroeder he had allowed Von Shroeder $15,000, to be paid by him to the plaintiff for the services which he had rendered in his efforts to secure the money in Europe; and that Donahue had also said that if Von Shroeder did not pay the commission he would himself pay it. This evidence is, however, insufficient to establish the value of any services rendered for Donahue. Von Shroeder and Donahue were both interested in the sale of the road, and the plaintiff had gone to New York with Von Shroeder, and at his request had gone from there to Europe. Donahue had himself effected the sale in New York for the benefit of both Von Shroeder and himself, and his statement that in a settlement with Von Shroeder he had allowed that sum of money to be paid to the plaintiff fails to establish that that was the value of any services rendered by the plaintiff to Donahue. If the plaintiff had not rendered any services to Donahue, Donahue's admission of their value would not be binding upon him or upon his executors. If he had rendered services for Von Shroeder and Donahue at the instance of Von Shroeder, the foregoing statements of Donahue would not establish the value of any services rendered for Donahue individually; and, if the obligation to pay the plaintiff was that of Von Shroeder, Donahue's verbal agreement to pay it would be invalid. The judgment and order are reversed.

We concur: GAROUTTE, J.; VAN FLEET, J.

(104 Cal. 554)

In re MURPHY'S ESTATE. (No. 15,770.) WOLSELEY et al. v. MURPHY et al. (Supreme Court of California. Nov. 30, 1894.)

WILL-WHAT CONSTITUTES-TWO INSTRUMENTS CONSTRUED AS ONE-FINDINGS.

1. The fact that two instruments executed on the same day by deceased, for the purpose of disposing of her property, without anything to show which was executed first, differ in respect to the persons to receive the property on the possible death without issue of the persons who were given a life estate therein, does not show such a conflict as to prevent the probate of either, but in such case both instruments should be probated together as a will.

2. An instrument reciting that the writer writes "this letter" to her children, that they may know what distribution to make of her property on her death, and stating that "I wish it plainly understood that I desire" all my property to be divided in a certain manner, is a valid will.

3. Where certain findings of the trial court are mere inferences from other findings established by the evidence, the former may be reviewed without bringing up the evidence.

Department 2. Appeal from superior court, Alameda county; T. W. Henshaw, Judge.

Contest of a will, in the matter of Anna L. Murphy, between Mary H. Murphy and others, proponents, and Anna T. Wolseley

and others, contestants. There was a judgment for contestants, and proponents appeal. Reversed.

George D. Metcalf, A. A. Moore, W. W. Foote, and Myrick & Deering, for appellants.

The law requires that such an interpretation be given to wills as will prevent intestacy, rather than bring it about. State v. Robinson, 57 Md. 501; Houser v. Ruffner, 18 W. Va. 244, 256; Booth v. Booth, 4 Ves. 403; In re Shillaber, 74 Cal. 144, 15 Pac. 453; In re Estate of Wood, 36 Cal. 75; Clarke v. Ransom, 50 Cal. 595; Warner v. Willard, 54 Conn. 470, 9 Atl. 136; Higgins v. Dwen, 100 Ill. 554; Smith v. Smith, 17 Grat. 268; Gourley v. Thompson, 2 Sneed, 387; Saxton v. Webber, 83 Wis. 617, 53 N. W. 905; Appeal of Boards of Missions, 91 Pa. St. 507; Miller's Appeal, 113 Pa. St. 459, 6 Atl. 715; Given v. Hilton, 95 U. S. 591, 594; Bernasconi v. Atkinson, 17 Eng. Law & Eq. 103; In re Skerrett's Estate, 67 Cal. 585, 8 Pac. 181.

On probating a will, the court has nothing to do with the construction of its provisions. In re Fleetwood, 15 Ch. Div. 594; Barnes v. Vincent, 5 Moore, P. C. 201-212; McArthur v. Scott, 113 U. S. 385, 386, 5 Sup. Ct. 652; Jolliffe v. Fanning, 10 Rich. Law, 200; Prater v. Whittle, 16 S. C. 40, 46; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618; Graham v. Burch, 47 Minn. 171, 49 N. W. 697; In re Merriam, 136 N. Y. 58-60, 32 N. E. 621; Cox v. Cox, 101 Mo. 168, 13 S. W. 1055; Besancon v. Brownson, 39 Mich. 388; In re McLaughlin, 1 Tuck. 79; In re Cobb, 49 Cal. 600; In re Soher, 78 Cal. 477-482, 21 Pac. 8.

Several documents may be probated together as one will. Lemage v. Goodban, 1 Prob. & Div. 62, 63; Dempsey v. Lawson, 2 Prob. Div. 98, 106, 107, 108; Clarke v. Ransom, 50 Cal. 595; In re Estate of Skerrett, 67 Cal. 585, 8 Pac. 181; In the Goods of Graham, 3 Swab. & Tr. 69, 71; Geaves v. Price, Id. 71; In the Goods of Budd, Id. 196; In the Goods of Leese, 2 Swab. & Tr. 442; In the Goods of Nickalls, 4 Swab. & Tr. 40; In the Goods of Morgan, L. R. 1 Prob. & Div. 323; In the Goods of Petchell, L. R. 3 Prob. & Div. 153; Perkins v. Jones, 84 Va. 358, 4 S. E. 833; Pepper's Estate, 148 Pa. St. 5, 23 Atl. 1039; Knox v. Knox, 95 Ala. 495, 11 South. 125; In re Forman's Will, 54 Barb. 274; Lyon v. Fisk, 1 La. Ann. 444; Stoddart v. Grant, 1 Macq. 169.

Wilson & Wilson and Garber, Boalt & Bishop (Hall & Earl, of counsel), for respondents.

MCFARLAND, J. Anna L. Murphy, deceased, died at London, England, on March 30, 1891. She was a widow at the time of her death, and her heirs at law were her three sons, Eugene K. L. Murphy, Samuel J. Murphy, and Daniel T. Murphy; her married daughter, Anna L. Wolseley; and her

three unmarried daughters, Mary Helen Murphy, Frances Josephine Murphy, and Mary Margaret Isabella Murphy,-all of legal age. She left property in Alameda county, Cal. On June 20, 1891, Victor H. Metcalf filed a petition in the superior court of said county, in which he set forth that said deceased left two certain written instruments, each dated May 13, 1890, which he alleged to be her will, and prayed that they be admitted to probate as such will. He also averred that the heirs competent to administer had requested in writing that he be appointed administrator of the estate of the deceased, and prayed that he be so appointed. Such proceedings were thereafter had that on July 20, 1891, said two instruments were regularly admitted to probate by said court as constituting the last will of said deceased, and said Metcalf was appointed administrator with the will annexed, and duly qualified as such. Afterwards, on July 19, 1892, within the year prescribed by the Code, the said Anna T. Wolseley, Samuel J. Murphy, and Daniel T. Murphy filed in said court a petition to revoke the said probate of said will. The grounds on which the petition was based were that said two instruments "do not, nor does either of them, constitute the last will and testament of said Anna L. Murphy"; that they were never signed, executed, declared, etc., by the deceased as her will, or attested as required by law; that they were not intended by her as her will, or regarded by her as a completed will; and that they were only a memorandum to be submitted to her attorney for advice, from which a will was to be made in the future. Afterwards contestants filed an amended petition in which they alleged the additional grounds that said instruments were procured by fraud and undue influence, and set up at length and in detail the facts that said deceased was of unsound mind, and was fraudulently procured to make said instruments by the controlling and undue influence of certain of said unmarried daughters, who made false representations to her about the conduct of the contestants, etc. Issues of fact were raised by answers to these petitions, and the whole case was tried by the court without a jury. After the evidence had all been taken, the contestants again made an amendment to their petition, by averring that it could not be shown which of said instruments was, in point of time, last executed, and "that said two documents are wholly inconsistent and irreconcilable, each with the other, and cannot and do not together constitute a last will." This last amendment was made more than two years after the probate of said instruments as the last will of the deceased. The court made findings in which it found all the material issues of fact against contestants, and in favor of the proponents of the will. That is, the court found that on May 13, 1890, the deceased duly executed each of said in

struments as a holographic will; "that both of said documents were not, nor was either of them, simply or only a memorandum to be submitted to an attorney," etc., "but that each of said instruments was at the time it was executed as aforesaid intended to be and was the will of said deceased"; that at the time of their execution, "and continuously thereafter, until the time of her death, the said Anna L. Murphy was of sound and disposing mind and memory, free from duress, menace, fraud, or undue influence of every character, and she was fully competent to make a last will and testament; and the said documents were not made and executed under any fraud, imposition, or undue influence of her daughters Mary Helen Murphy and Frances Murphy, or either of them, or of any person whatever, but were made and executed as the free and voluntary and uninfluenced act and deed of said Anna L. Murphy." The court, however, decided the case in favor of contestants and revoked the probate, on the ground stated in the aforesaid last amendment of contestants, viz. that the said two instruments are inconsistent and irreconcilable. The court found, under the heading of "Facts," "that said two documents are wholly inconsistent and irreconcilable, each with the other, and it cannot be shown from the evidence which, in fact, of said two documents, was executed last, and that no act of said deceased subsequent to the execution of said documents, or either of them, has explained them"; and that "it is impossible to ascertain the relative chronological position of said two conflicting documents." And under "Conclusions of Law" the court found that, "said two documents being wholly inconsistent and irreconcilable each with the other, neither one nor both has been proved to be the will of the deceased; that by reason of the foregoing said Anna L. Murphy died intestate; that the probate of said instruments heretofore granted herein must be annulled and revoked." Judgment was accordingly rendered, revoking the probate, and proponents appeal from the judgment upon the judgment roll.

As the court finds that the two instruments were executed on the same day, and that there is no evidence to show which was, on said day, executed last, it is evident that the questions presented to this court are to be determined upon consideration of the said instruments themselves. Counsel for both sides have argued the case with great industry and ability; and in their briefs they have presented many authorities, both English and American, and have quoted copiously therefrom. We do not deem it necessary, however, to notice here many of the cases cited. They will no doubt appear in the official report of the case. We will give here merely the results of a consideration of the authorities, and of the principles which we think applicable.