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and natural right of the parties interested to dispose of the property in any manner they may choose.—Moore v. Lauft, 30 Cal. App. 452, 158 Pac. 557.

8 1678.

1. Distribution to transferee-A written instrument executed by an heir and filed in the proceeding for the distribution of the estate, formally assigning and transferring all his interest in the residue of the estate to the surviving residuary legatees, operates to transfer all his interest to the persons named, and authorizes a distribution thereof

to

the transferees. Estate of Hayne, 165 Cal. 568, Ann. Cas. 1915A 926, 133 Pac. 277.

$ 1686.

1. Advancements before will.-Advancements made before the will was executed can not be considered in distributing the estate unless specified in the will, because it is presumed that the testator had in view all previous advancements when he made his will and acted accordingly so as to make the final division conform to his actual wishes.-Estate of Vanderhurst, 171 Cal. 553, 154 Pac. 5.

8 1713

1. Rules of practice-Construction.This section makes the provisions of section 385 applicable in proceedings to contest a will. -Estate of Baker, 170 Cal. 578, 150 Pac. 989.

CHAPTER XII.

OF ORDERS, DECREES, PROCESS, MINUTES, RECORDS, TRIALS, AND APPEALS.

$ 1714. New trials and appeals. § 1723. Disposition of life estates or homesteads, or community property, on owner's death

in certain cases.

8 1714. NEW TRIALS AND APPEALS. The provisions of part two of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title;

[Motion for new trial in probate proceedings.] provided, that hereafter a motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings under section one thousand six hundred sixty-four of this code and in those cases where the issues of fact, of which a new trial is sought, were tried by a jury or were of such character as to entitle the parties to have them tried by a jury whether or not they were so tried.

History: Enacted March 18, 1872; amended March 11, 1911, Stats. and Amdts. 1911, p. 399; April 13, 1917, Stats, and Amdts. 1917, p. 117.

In effect July 27, 1917. 1. New trials and appeals Construction. the judgment is "made or rendered," not -The amendment, beginning with the "pro- exceeding sixty days after entry:-Estate of vided" clause does not deprive the supreme Stone, 173 Cal. 675, 161 Pac. 258. court, on an appeal from a decree distrib- 3. Notice of appeal.-An appeal taken uting the estate of a decedent, of the right in a will contest proceeding is not subject to examine the record and to direct the to dismissal upon the ground that the nolower court to do any thing in the proper tice of the appeal recited that the appeal exercise of its probate jurisdiction.—Estate was taken from the judgment on the verof Vanderhurst, 171 Cal. 553, 154 Pac. 5. dict of the jury, instead of from the judgerty of the estate, are binding upon the parties interested.-Rountree v. Montague, 30 Cal. App. 170, 157 Pac. 623.

ment admitting the will to probate. —Estate 8 1715.

of Stone, 173 Cal. 675, 161 Pac. 258. APPEALS IN PROBATE MATTERS.

8 1716. 1. As to when lie.

1. Joinder and trial of issues in probate 2. As to premature appeal. 3. Notice of appeal.

court-Construction.-In any probate pro

ceeding in which the statute authorizes the 1. As to when lie.—Appeals lie in probate formation of issues, either party is under cases only when given by statute, and no this and section 1312 entitled to a jury trial statute allows an appeal from a finding: - at his option. The formation of issues is Estate of Funkenstein, 170 Cal. 594, 150 Pac. authorized upon a proceeding for partial 987.

distribution.—Estate of Baird, 173 Cal. 617, 2. As to premature appeal.-An appeal 160 Pac. 1078. from a judgment admitting a will to pro- 2. Proceedings in rem.—Proceedings in bate taken four days before the entry of probate for the settlement of estates of dethe judgment is not premature, as under ceased persons are in the nature of proceedsection 1715 of the Code of Civil Procedure ings in rem, and judgments therein, so far the appeal may be taken at any time after as they relate to the disposition of the prop

by jury, but merely prescribes the procedure when the right exists and is exercised, or in any case when a jury is allowed on such demand whether of right or of grace.-Estate of Baird, 173 Cal. 617, 160 Pac. 1078.

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8 1717.

1. Trial with and without jury--Construction of section. In the absence of a demand in a matter of the application for the appointment of guardian on the grounds of incompetency, no right of the alleged incompetent was infringed by the court proceeding to try the issues without a jury.—Matter of Coburn, 165 Cal. 202, 131 Pac. 352.

2. It must be observed that this section does not grant the right to demand a trial

§ 1720.

Costs - Construction of section. Where the contest was before and not after probate this section rather than section 1332 regulates the matter of costs. But in both sections this is confided to the sound discretion of the trial court.-Estate of Jones, 166 Cal. 147, 135 Pac. 293.

8 1723. DISPOSITION OF LIFE ESTATES OR HOMESTEADS, OR COMMUNITY PROPERTY, ON OWNER'S DEATH IN CERTAIN CASES. If any person has died or shall hereafter die who at the time of his death was the owner of a life estate which terminates by reason of the death of such person; or if such person at the time of his death was one of two or more persons holding land in joint tenancy, which land by reason of his death vests absolutely in the surviving joint tenant or tenants; or if such person at the time of his death was the spouse of a person owning land upon which either spouse had declared a homestead, the homestead interest of which deceased person absolutely terminated by reason of his death;

[Interested persons may petition.) any person interested in the land, or in the title thereto, in which such estate or interest was held, may file in the superior court of the county in which the land or any part thereof is situated, his verified petition setting forth such facts, and thereupon and after such notice by publication or otherwise as the court may order;

[Decree of court.] provided, that notice shall be given in each county where any part of said land is situated in the same manner as in the county where said petition is filed, the court shall hear such petition and the evidence offered in support thereof, and if upon such hearing it shall appear that such estate or interest so terminated or vested, the court shall make a decree to that effect, and thereupon a certified copy of such decree shall be recorded in the office of the county recorder of each county in which any part of said land is situated, and thereafter shall have the same effect as a decree of final distribution so recorded;

[Inheritance tax.) provided, that if such estate or interest was a joint tenancy, any inheritance tax which is due and payable by reason of the death of such deceased person, must be fully paid before such decree is made; and the amount of said inher. itance tax shall be fixed, and said tax shall be paid, in the same manner as in the case of an administration upon the estate of a decedent.

History: Enacted March 4, 1881, Stats. and Amdts. 1881, p. 35; amended March 4, 1897, Stats. and Amdts. 1897, p. 62; by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 234; Act held unconstitutional, see History, $ 5, C. C. P.; amended March 18, 1905, Stats. and Amdts. 1905, p. 146; April 15, 1913, Stats. and Amdts. 1913, p. 27; May 10, 1915, Stats, and Amdts. 1915, p. 434; May 31, 1917, Stats. and Amdts. 1917, p. 1397. In effect July 30, 1917,

CHAPTER XIV.

OF GUARDIAN AND WARD.

1.

§ 1747.

1. Guardian-Superior court to appoint, when.—Where a resignation of a guardian is accepted and a new guardian appointed the same day, it will be presumed in support of the order appointing the latter that the order directing the former to deliver the property of the ward was made before the appointment.-Fresno Estate Co. v. Fiske, 172 Cal. 583, 157 Pac. 1127.

2. Upon denial of guardianship.-Upon an application made by a parent for letters of guardianship of the person and estate of his child pursuant to section 1747 of the Code of Civil Procedure, the court, upon denying the application, has authority, by virtue of section 214 of the Civil Code, to make an order as to the custody of the child.—Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169.

3. The superior court is a court of "competent jurisdiction" to make such an order, within the meaning of the provisions of section 214 of the Civil Code.-Cole v. Superior Court, 28 Cal. App. 1, 151 Pac. 169.

$ 1750.

Nomination of guardian by minor over fourteen-Construction.-When this section is read in connection with the two preceding sections it is clear that it means that a minor over fourteen years has the absolute right to replace the guardian appointed by the court when he was under fourteen with one of his own selection, provided that the person selected is a suitable person in the estimation of the court.-Guardianship of Kirkman, 168 Cal. 688, 144 Pac. 745.

2. A minor over the age of fourteen years has the authority to select a new guardian in place of the one appointed when under such age, regardless of whether or not the displaced guardian is a parent, and the order of the court appointing the nominated guardian constitutes an approval of her selection, and makes the order valid under the statute unless it is made to appear that the court abused its discretion in such approval. -In re Meiklejohn, 171 Cal. 247, 152 Pac. 734.

§ 1748.

1. Appointment of guardian-Nomination by minor.-In a proceeding for the appointment of a guardian on the grounds of incompetency the court may select any proper person to act and is not required to give any weight to the wishes or preference of the ward as is the case in the appointment under this section.—Matter of Coburn, 165 Cal. 202, 131 Pac. 35

8 1754.

ARTICLE II.

GUARDIANS OF INSANE AND INCOMPETENT PERSONS.

$ 1764a. Appointment as guardian [new].

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1. Bond of guardian-Construction (subd. 3).-It is the guardian's duty to settle his account with the court or with the administrator after the ward's death. The provisions of this section refer to obligations which may be enforced under the guardian's bond, and they also accurately define the duties of the guardian.-Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

meyer's Guardianship v. McAllister, 153 Pac. 233.

2. -Notice of hearing.–Notice of the time and place of hearing is essential. Where there is nothing, however, in the record on appeal showing the want of such service, and there is a recital in the order appealed from that the matter "came on regularly for hearing this day" it will be presumed to be true.-Estate of Schulmeyer, 171 Cal. 340, 153 Pac. 233.

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8 1764a. APPOINTMENT AS GUARDIAN. In awarding letters of guardianship of the person and estate, or person or estate, of an insane or incompetent person, the court shall appoint as guardian such person as may have been designated pursuant to section two hundred forty-two of the Civil Code, in which cases such persons shall be appointed unless good cause to the contrary be shown.

History: Enactment approved May 17, 1917, Stats. and Amdts. 1917, p. 644. In effect July 27, 1917.

3. Constitutionality of section.—This section is not invalid as to cases arising subsequent to its enactment, as an attempted exercise by the legislature of the power be. longing exclusively to the judiciary in interpreting a pre-existing statute. Neither is it obnoxious to the requirement

that every act shall embrace but one subject and this subject must be expressed in the title; the failure to designate in the title of the act the number of the section to be added to the code is immaterial.—Matter of Coburn, 165 Cal. 202, 131 Pac. 352.

8 1770.

1. Guardian of incompetent-Construction.—This section relates only to the sale of the property of a living ward.—Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

8 1766.

1. Insane, etc., person-Restoration to capacity, proceedings for.-Mandamus proceeding to compel the board of police commissioners of the city and county of San Francisco to reinstate a police officer removed on account of mental incapacity is barred by the statute of limitations and the laches of the petitioner, where it is not instituted until some seven years and eight months after the date of the certificate of discharge of the petitioner from the state hospital to which he was committed, notwithstanding that it was instituted within the statutory period after the restoration of the petitioner to capacity by an order of the superior court, made pursuant to section 1766 of the Code of Civil Procedure, where the petition for restoration to capacity made no reference to previous guardianship proceedings.--Knorp v. Board of Police Commissioners, etc., 31 Cal. App. 539, 161 Pac. 12.

2. A certificate of discharge from a state hospital is prima facie proof of the patient's restoration to capacity upon that date, and nothing appearing to the contrary, the presumption must prevail that he was then and ever since had been sane.--Knorp v. Board of Police Commrs., 31 Cal. App. 539, 161 Pac. 12.

3. Where a patient is given a leave of absence from a hospital by the medical superintendent, he is constructively under the control and custody of the state, and it is not essential to the exercise of the jurisdiction to discharge the plaintiff that he should have been actually confined to the state hospital at the time the certificate of discharge was applied for and granted.Knorp v. Board of Police Commrs., 31 Cal. App. 539, 161 Pac. 12.

4. In the absence of guardianship proceedings, the jurisdiction to restore a patient committed to the state hospital to competency is vested exclusively in the offcers of the hospital.-Knorp v. Board of Police Commrs., etc., 31 Cal. App. 539, 161 Pac. 12.

8 1774

1. Guardian of incompetent-Contesting fipal account. The heirs of an incompetent have the right to contest the final account of the guardian of the estate.-Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

$ 1776.

1. Guardian of incompetent-Compensation and expenses of.-Expenses incurred in the settlement of the account, including reasonable attorney fees, is proper.-Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

2. Allowance to the guardian of a sum by way of compensation to his wife for services rendered by her in nursing the incompetent is proper.--Estate of Clanton, 171 · Cal. 381, 153 Pac. 459.

3. It is proper to allow a guardian on his final account money paid to the wife of his ward to compensate for nursing the ward under a contract with her.--Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

Where a guardian makes expenditures which are just and equitable, they may be allowed, although made without first obtaining an order of court.- Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

5. Expenditures made without formal allowance by the court are properly approved when the same have been just and equitable.-Estate of Clanton, 171 Cal. 381, 153 Pac, 459.

8 1767

1. Incompetent-Construction of section. -In enacting this section the legislature was not undertaking to alter the existing statute, but merely to clarify and make more certain the meaning and effect of those sections. If in so doing the construction which would otherwise have been given to sections 1763 and 1764, was to some extent changed by the new legislation, the modification of the earlier statutes was not an amendment of them within the meaning of the constitution.—Matter of Coburn, 165 Cal. 202, 131 Pac. 352.

2. The conditions warranting the appointment of a guardian of an incompetent person are governed by section 1767 of the Code of Civil Procedure.--Estate of Schulmeyer, 171 Cal. 430, 153 Pac. 233.

§ 1801.

1. Removal, etc., of guardian-Construetlon.—The provisions of this section are not limited by the general language of section 1808.-Fresno Estate Co. v. Fiske, 172 Cal. 583, 157 Pac. 1127.

$ 1808.

1. Entering order appointing guardianConstruction.—The general language of this section does not limit the provisions of section 1801.-Fresno Estate Co. v. Fiske, 172 Cal. 583, 157 Pac. 1127.

PART IV.

OF EVIDENCE.

TITLE I.

OF THE KINDS AND DEGREES OF EVIDENCE.

1826. 1. Degree of certainty of proof-Construction.-Sections 1826 and 1835 are mani. festly not in accord with other provisions of law, even on the subject to which they relate. Section 1835 is in conflict with sections 1959, 1961, 1962 and 1963. Sections 1826 and 1835 purport simply to declare what character of evidence will sustain a verdict, and deal exclusively with evidence in criminal cases (Henshaw, J., concurring). -People v. Miller, 171 Cal. 649, 154 Pac. 468.

As to satisfactory evidence, see, post, C. C. P. pt., $ 1835.

2. The term "preponderance of the evidence" simply means what it says, namely, that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.People v. Miller, 171 Cal. 649, 154 Pac. 468.

3. Sections 1824 and 1826 of the Code of Civil Procedure, declaring what character of evidence will sustain a verdict, have no application to the question involved in this case as to the meaning of the term "preponderance of evidence."-People v. Miller, 171 Cal. 649, 154 Pac. 468.

the same whether the proof relied upon be direct or circumstantial.- People v. Lim Foon, 29 Cal. App. 270, 155 Pac. 477.

2. Instructions explaining to a jury the distinction between direct and circumstantial may with propriety be given in appropriate cases. Whatever may be the character of the evidence, whether it be the direct testimony of an eye-witness to the fact in dispute or evidence of circumstances from which the existence of the fact in dispute may be inferred, it being relevant and competent, a conviction will be justified and sustained if the guilt of the accused is shown to a moral certainty and beyond a reasonable doubt, and it is with eminent propriety that the jury should be enlightened upon these important matters.--People v. Lim Foon, 29 Cal. App. 270, 155 Pac. 477.

§ 1835.

1. Satisfactory evidence-Construction.Section 1835 of the Code of Civil Procedure, like section 1826 of the same code, is dealing exclusively with evidence in criminal cases. -People v. Miller, 171 Cal. 649, 154 Pac, 468.

As to degree of certainty required, see, ante, C. C. P. pt., $ 1826.

2. Evidence which purports to reproduce the declarations of a person since deceased is the weakest sort of evidence.-Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483.

§ 1828.

1. Degrees of evidence.—The degree of proof necessary to a conviction is precisely

CHAPTER II.

WITNESSES.

$ 1881. Persons can not be examined in certain relations.

§ 1847.

proper subject-matter of inquiry, are ones

where it is held that malice or a malicious WITNESS PRESUMED TO SPEAK TRULY.

motive may make an otherwise lawful act 1. Construction of section.

unlawful and actionable.-National Oil Re2. As to effect of motive.

fining Co. v. Producers' Refining Co., 169 Cal. 3-5. Credibility of witnesses.

740, 147 Pac. 963. 1. Construction of section.—The motive

3. Credibility of witnesses. It is within to which section 1847 of the Code of Civil the province of the trial court to determine Procedure refers when it declares that the what weight and credit should be given to presumption that a witness speaks the truth the testimony of any witness, and the apmay be repelled by evidence affecting his pellate court may not control the conclusion motives, means the motive arising from re- or finding of the lower court denying crelationship, interest, bias and prejudice.- dence to the testimony of a witness unless National Oil Refining Co. v. Producers' Re- it appears that here is nothing which at fining Co., 169 Cal. 740, 147 Pac. 963.

all impairs its accuracy.-Cox v. Schnerr, 2. As to effect of motive.-The cases in 172 Cal. 371, 156 Pac. 509. which motive, apart from its establishment 4. The credibility of a witness is a matby interest, relationship, bias or prejudice, ter for the consideration of the trial court, and aside from criminal cases, becomes a and will not be considered on appeal.—Clin

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