bernia S. & L. Soc. v. Lewis, 111 Cal. 519, 44 Pac. 175.

The petition to distribute the legacy was not premature. It was filed 20 months after letters testamentary were issued, and the subsequent proceedings, through which the supplement was probated as part of the will, did not operate to compel delay in presenting such petition. The law expressly provides that any heir, devisee, or legatee may present his or her petition for the distribution of the share of the estate to which they are entitled at any time after the "lapse of one year from the issuance of letters testamentary," and, as this time had admittedly elapsed, the petitioner had a right to demand that his share be distributed to him. Code Civ. Proc. § 1663. The will must be so construed as to effectuate the intention of the testatrix, and to this end all parts thereof must be construed in relation to each other, so as, if possible, to make one consistent and harmonious whole. Civ. Code, §§ 1317. 1324. Another rule requires that words used in a will be taken in their ordinary sense, and that effect be given to every expression therein. Civ. Code. §§ 1324, 1325. Taking the will under consideration "by its four Corners," and construing it in obedience to these rules, it seems clear that the testatrix intended that $40,000 should be paid to her husband for his unrestricted use during his lifetime. We are thoroughly convinced that the will can be given no other construction without thwarting the evident intention of the testatrix. It contains the direction that, if her husband survived her, he "be paid, for his use, his lifetime, the sum of forty thousand dollars." There is no room for construction of this language, for it is too plain to be misunderstood. If, however, further light is needed touching the intention of the testatrix, it is suppled by the clause immediately following the language just quoted, where she emphasizes her desire by saying "or if he wishes he may have that much in value, whenever or wherever he may wish." If this is not enough to bring conviction as to the dominant idea she was trying to express, cumulative evidence of her intention is found in the third subdivision of the will, where she directs that "whatever there may be left after my husband has the forty thousand dollars I wish to give to him the use of" shall be equally divided among her four children, who at the death of her husband shall also have "every dollar that is not used for his comfort and pleasure," and then in the supplement, as if to clinch the proposition, she says with reference to the realty, "but in that I do not wish him to keep and use that as his forty thousand dollars or any part thereof unless he wishes to," and then adds, by way of preventing possible misapprehension, "but my husband is not to have forty thousand dollars besides this real estate." The supplement, which must be taken as the latest expression of her will, taken

alone, clearly indicates that her design was to give her husband the $40,000 as fully and completely as the land which she had already deeded to him. He is clearly given. full rein to do as he pleased concerning the realty. At his option he might keep it "as his forty thousand dollars," or any part thereof, but he could not have the money and real estate both. This idea is in accord with the general terms of the will, and but for the two expressions "his use his lifetime” and “I wish to give him the use of," found, respectively, in the second and third clauses of the will, and the idea conveyed in the clause disposing of the residue which might remain at the time of her husband's death, no other construction would be possible than that she intended that he should take the money absolutely. But the supplement, referring, as it certainly does, to the bequest in the main will, must be construed with the latter unless there is a clear repugnance, in which case, the supplement must control. It is therefore necessary to give some effect to the expressions and residuary clause above mentioned, and to consider the expression upon which contestant places great reliance, where it is said, "I direct that my husband shall have the use of this money or the interest of it." Taking up the clause just quoted, and construing it in relation to the part immediately preceding it, we can hardly escape the conclusion that the words "or interest of it" were used in line with her evident purpose to give him his choice, and to consult his wishes in that and all other particulars. A construction that would confine the bequest to the interest on $40,000 would not only be repugnant to the preceding language, but in absolute conflict with the supplement, which clearly expresses the intention that he shall have the money. We must adopt the only construction which will give this expression some effect, and that is that he could have the use of the money or the interest on it, according to his wishes, which are clearly manifested in the petition herein. Any other construction would give undue weight to an isolated phrase as against oft-repeated and later expressions of testatrix, and be tantamount to making a new will. Clearly, her design was to give him the money to use, according to his judgment and discretion, for his comfort and pleasure as long as he lived. Analysis of the will as a whole leads to the inevitable conclusion that her dominant intention and idea was that her husband would be paid and would have the money, or that much in value, according to his selection and pleasure, for his untrammeled use; or, of he so desired, he could retain the land already his, and thus forego the payment of the money, which he was evidently to use, with as little restriction as the land. This being the central, con. trolling, all-pervading, and oft-repeated intention, her secondary or subordinate intention or idea as to what should be done with

it after her main intention had been accomplished cannot be allowed to impair, modify, or nullify the dominant intention, perfectly manifest in every line of the will, and particularly in the supplement. The main precedent intention must be carried out, and then the secondary or subservient intention must be given such effect as the law may dictate. When a testator or testatrix gives positive directions that money or other personal property shall be paid or given to a legatee, and then directs the disposition to be made of it afterward, the latest direction is not only performable subsequently, but its performance is secondary and subordinate to, as well as dependent upon, the performance of the precedent and primary direction. Here there is no difficulty in determining what the intention of the testatrix was, and the only difficulty suggested arises from the alleged effect of rules of law on the secondary and subordinate intention if the main intention is given full effect. But this difficulty is more imaginary than real, for we are to effectuate the intention of the testatrix in sequential order, so far as rules of law will permit. We cannot violate, modify, change, or nullify the plain direction that the money shall be paid to the petitioner for his use as long as he shall live, and that he shall have it, unless he chooses to retain land previously deeded to him, or selects that much in yalue in other property, simply because he may use all or the greater portion in the pursuit of comfort and pleasure. The contestant, who is only entitled to her share of every dollar that is not so used, cannot complain of such distribution or its possible results, for the very excellent reason that by the terms of the will she is only entitled to share in what may remain at the time of petitioner's death. Neither can we refuse to recognize the positive direction that he shall be paid and shall have this money to use as "his forty thousand dollars" during life, because the legal effect of such payment may be to confer upon him an absolute right to do as he pleases in expending all or any portion of it for his comfort and pleasure. She has directed that he must be paid and have it. She clearly contemplated that he would use it as he pleased, for she recognizes his full right to do so by only attempting to dispose of what may be left after he has the unrestricted and uncontrolled use of it for his comfort and pleasure during his lifetime. In the very latest expression of her intention she places his right to use the money, and the manner in which he shall use it as his, on a par with his right to use the land, by placing the money in the scale with land already his, and giving him the selection of either. And in the clause where she directs that it be paid to him, she again manifests her intention as to the use he will be entitled

to make of the money by giving him the right to waive the cash, and "have that much in value whenever or wherever he chooses." These plain and oft-repeated expressions of her intention and desire cannot be curtailed, ignored, or disregarded, and if he uses every dollar of the money for comfort or pleasure, according to his discretion, no right of contestant will be violated. As before stated, she is only entitled to share in what may remain, even if every clause in the will is given full effect, and hence she cannot complain, much less ask that he be deprived of his plain rights, to the end that she may have more than the testatrix intended.

In the case of In re Garrity, 108 Cal. 473, 38 Pac. 628, 41 Pac. 485, the facts were almost identical with the facts in the case at bar. In that case the will gave the surviving wife all of the property, consisting of land, money in bank, and chattels, for her use during her life, the remainder going to three children. The court distributed the estate by awarding her the share to which she was legally entitled as surviving wife, absolutely, and the balance of the estate, including $1.834.47 in money, was distributed to her for her use during her life. Upon appeal the very questions presented here were fully and carefully considered, and it was held that she was entitled to, receive the corpus of the money and other property, for the reason, among others, that the will implied that the estate might be diminished while in her hands. And so it is here. The will clearly implies, and the testatrix evidently contemplated. that the sum might be diminished by petitioner, for only the unused portion remaining at his death is given to the children. Therefore. the case cited applies with cogent force to the case at bar, and the principles of law therein declared are controlling here.

The decree of the court below was in full consonance with the aforesaid principles and with our construction of the will in every particular save one. The court found as a fact, and so decreed, that the full sum of $40.000 should go to contestant and her aunt and uncles, in equal shares, upon the death of petitioner. This finding being nothing more than a conclusion of law, it is unnecessary to send the case back for further proceedings. It is therefore ordered that the decree therein entered be modified by inserting before the words "said sum" on the fifth line of the distributive clause found at folio 74 of the transcript the words "the unused portion of," thereby distributing the portion of said $40.000 remaining unused at petitioner's death to the residuary legatees. As so modified, the decree is affirmed.

We concur: BUCKLES, J.; CHIPMAN, J.

(4 Cal. App. 235) BURKE v. BOARD OF TRUSTEES OF POLICE RELIEF & PENSION FUND OF CITY & COUNTY OF SAN FRANCISCO. (Civ. 200.)

sion fund of the city and county of San Francisco. From a judgment for defendant, plaintiff appeals. Affirmed.

Jordan. Treat & Brann and Jordan &

Aug. 15, 1906.)

1. PLEADING-LEGAL CONCLUSIONS.

In an action to recover a sum alleged to be due from a police pension fund. an averment that there was in the official custody and subject to the official control of the defendant more than sufficient money applicable to and with which to pay plaintiff's claim was but a legal conclusion, and was limited by the facts on which she based her claim and the provisions of law applicable to such facts.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 29.1

2. MUNICIPAL CORPORATIONS POLICE-PENSION FUND-CONTRIBUTIONS.

for respondent.

HARRISON, P. J. The appellant seeks by this proceeding to obtain a writ of mandate, commanding the board of trustees of the police relief and pension fund of the city and county of San Francisco, the respondent herein to pay to her the sum of $596 from said fund, which she claims to be entitled to receive by virtue of certain provisions of the charter of said city and county. In her petition therefor she alleges that she is the surviving widow of John Burke, and that her husband was appointed a member of the police department of San Francisco, February 10, 1874 that on January 5, 1903, on his application to the board of police commissioners. and it having been made to appear to said

San Francisco City Charter (St. 1899, p. 241. c. 2), went into effect January 1. 1900, and "reated the police relief and pension fund. Article 8. c. 10. § 6 (page 333), declares that when any member of the department shall, after 10 years' service, die from natural causes. his widow, etc., shall be entitled to a sum equal to the amount retained by the treasurer from the pay of such deceased member, and paid into the relief and pension fund. Article 8. c. 10. $11, subd. 9 (page 334), requires the treasurer to retain from the pay of each member of the police force two dollars a month for the benefit of such fund. Held, that the act was prospective only, so that on the death of a police officer his widow was only entitled to recover a sum equal to the amount retained from his pay for the benefit of the pension fund after the act took effect.

4. MANDAMUS-RIGHT TO WRIT-DENIAL.

Where, prior to the institution of mandamus proceedings to compel payment of a portion of a police pension fund to petitioner, defendant had audited and allowed a demand in favor of petitioner for an amount greater than she was entitled to, and it did not appear that petitioner had demanded such money, or shown any reason why she had not received same, mandamus was properly denied.

[Ed. Note.-For cases in point, see vol. 33. Cent. Dig. Mandamus, § 48.] 5. MUNICIPAL CORPORATION CHARTER.

FREEHOLDERS'

San Francisco freeholders' charter, when approved by St. 1899, p. 241, c. 2, became the organic law of the city and county by the express terms of Const. art. 11, §§ 6, S. and superseded the existing charter and ali laws inconsistent therewith, so that the city thereafter was not subject to nor controlled by general laws.

Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.

Action by Hettie T. Burke against the hoard of trustees of the police relief and pen

by bodily injury received in the performance of his duty, he was retired from further service in the department; that in the resolution for his retirement it was provided that he be paid from the police relief and pension fund of the department a monthly pension, equal to one-half the amount of the salary attached to the rank which he held in the department for the period of three years preceding the date of his retirement; that after his said retirement he died from natural causes, February 26, 1903: that he was not paid any portion of said pension fund, but that on March 31, 1903, the defendant audited and allowed a demand on the treasurer of the city and county for the sum of $99.66, payable out of said pension fund, as for his pension for the quarter ending on that date. She also alleges that while her husband was a member of the police department he paid into said fund out of his salary the sum of $2 each month, from April, 1878, to and including January, 1903, amounting in the aggregate to $596. The superior court sustained a demurrer to the petition, and from its refusal to issue the writ of mandate prayed for, the petitioner has appealed.

The rights of the appellant are measured by the provisions of the charter of San Francisco, and these provisions alone can be considered in determining whether she is entitled to any relief, and, if so, the extent of such relief. She bases her claim upon the provisions of section 6, c. 10, art. 8, of the charter (St. 1899, p. 333, c. 2), which declares: "When any member of the department shall, after ten years' service, die from natural causes, then his widow, and if there be no widow then his children, of if there be no widow or children then his mother, if dependent upon him for support, shall be entitled to a sum equal to the amount retained by the treasurer from the pay of such deceased member and paid into the relief and pension fund; but the

provisions of this section shall not apply to any member of the department who shall have received any pension under the terms of this chapter." Whatever money she is entitled to receive is to be paid to her out of this fund, and only such amount of the fund as the treasurer shall have retained from the pay of her husband and paid into the fund. The fund itself is provided for by section 1 of said chapter 10, art. 8 (page 332), which declares that "a fund is hereby created to be known and designated as the 'Police Relief and Pension Fund.'" The moneys constituting the fund are enumerated in section 11 of the chapter, subdivision 9 (page 334) of which directs the treasurer "to retain from the pay of each member of the police force $2 a month, which shall be forthwith paid into the police relief and pension fund."

The averment in the appellant's petition that there is in the official custody and subject to the official control of the defendant "more than sufficient money applicable to" and with which to pay her claim of $596 is but a legal conclusion, and is limited by the facts upon which she bases her claim and the provisions of law applicable to those facts (Pennie v. Reis, 132 U S. 464, 10 Sup. Ct. 149, 33 L. Ed. 426; Nichols v Police Pension Fund Commissioners, 82 Pac. 556, 1 Cal App. 494); and although the appellant has alleged in her petition that her husband, while he was a member of the police department, paid out of his salary the sum of $2 each month, yet, as we said in the case of Nichols v Same Defendant, supra: "The 'two dollars per month' which the petitioner alleges was retained by the treasurer from Nichols' pay as a member of the police department, and paid into said fund, was not a contribution to the fund by Nichols, but, as was said in reference to a similar provision in the act of 1878 in Pennie v. Reis, 132 U. S. 464, 10 Sup. Ct. 149, 33 L. Ed. 426, 'was money of the state retained in its possession for the creation of this very fund.'"

The charter of San Francisco went into effect January 1, 1900, and the police relief and pension fund created by it had its birth at the same time. The provisions of the charter, as well as the duties of the officers created by it, are prospective. It is only such moneys as the treasurer should retain from the pay of the appellant's husband after that date that could be paid into the fund, and it is only to such an amount of money so paid into the fund that under the provisions of section 6 the appellant is entitled. As her husband died in February, 1903, less than 38

months after the charter took effect, the treasurer could not have retained from his pay and paid into the fund more than $78. Prior to the institution of this proceeding by the appellant, the defendant had audited and allowed a demand on the treasurer against the fund of a greater sum than this; and, as it does not appear that the appellant had demanded this money, or shown any reason in her petition why she had not received the same, the court very properly denied her application.

The act of March 4, 1889 (St. 1899, p. 57), is not available to the appellant. That act was a general law applicable to all counties, cities and counties, and towns in the state, whereas the charter of San Francisco is a freeholders' charter, and when approved by the Legislature in 1899 became by the express terms of the Constitution (article 11, $$ 6, 8) the organic law of the city and county. and superseded the existing charter and all laws inconsistent therewith, and thereafter the city and county was no longer subject to or controlled by general laws. There is no provision in the charter by which the fund created by the act of 1889 should be transferred to or placed under the control of the officers created by the charter. The fund was at all times subject to legislative disposition (Pennie v. Reis, supra), and as section 14 (page 60) of the act required the surplus thereof to be transferred to the general fund on the last day of June of each year, and declared that it should be "no longer under the control of the board, or subject to its order," there is no presumption that any portion of the fund thereby authorized was | transferred to, or is under the control of, the respondent herein. respondent herein. See Nichols v. Police Pension Fund Commissioners, supra.

The proposition urged in the brief on behalf of the appellant that she is entitled to the sum claimed by her upon the ground that her husband never "received" any portion of the pension awarded him does not require discussion. Whatever right she has to any portion of the pension fund depends upon the provisions in the first portion of section 6. The concluding sentence of the section, upon which this argument is based, instead of conferring any rights, creates a limitation upon the rights which otherwise might exist, and whatever rights she has by virtue of the section she must establish under its other provisions.

The judgment is affirmed.

We concur: COOPER, J.; HALL, J.

(17 Okl. 589)

ST. LOUIS, E. R. & W. RY. CO. v. OLIVER et al.

(Supreme Court of Oklahoma. Sept. 8, 1906.) 1. EMINENT DOMAIN-LAND NOT TAKENCOMPENSATION.

Where a railroad, in condemning a right of way, cuts in two a tract of land, the fact that the operating of trains over the line of road and across the particular land increases the danger of fire to buildings and crops, and increases the danger to stock, are not matters which constitute independent elements of damages for which a specific award may be made; but such facts, when proven, together with any other inconveniences or dangers occasioned by the building and operating of the road, may be considered by the jury in determining the value of that part of the land not taken.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 236, 243, 271279.]

2. JUDGMENT ENTRY-AMOUNT OF RECOVERY

-INTEREST-VERDICT.

In a case tried by jury, where it is clearly apparent that the prevailing party is entitled to interest upon the amount found in the verdict, and it is unquestionably clear that the jury allowed no interest, or where the court reserved the question of allowance of interest until after verdict, and it is clearly ascertainable from the verdict or uncontroverted facts, the dates from which and to which interest should be allowed, and the rate is fixed. the court may make the computation, and add the interest so found to the sum found in the verdict and render judgment for the aggregation amount.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 378; vol. 46, Cent. Dig. Trial, §§ 785, 799.]

3. EMINENT DOMAIN-APPEAL FROM AWARD -TRIAL BY JURY-PROCEDURE.

In a condemnation proceeding, where the landowner appeals from the award, and the case is tried to a jury in the district court, it is not proper to permit the jury to be informed of the amount of the award made by the commissioners, and as the allowance of interest is dependent upon the question as to whether the amount of damages awarded by the jury is greater or less than the award of the commissioners, the court may, where the question is uncontroverted as to the date from which interest should be allowed, reserve the question of interest for determination by the court and direct the jury not to include interest in their verdict.

Burwell, J., dissenting.
(Syllabus by the Court.)

Error from District Court, Logan County; before Justice C. F. Irwin.

Action by the St. Louis, El Reno & Western Railway Company against James E. Oliver and Annie Oliver. From a judgment in condemnation proceedings, the railway company brings error. Affirmed.

Dale & Bierer, for plaintiff in error. Cotteral & Hornor, for defendants in error.

BURFORD, C. J. The St. Louis, El Reno & Western Railway Company commenced proceedings to condemn the right of way for its line of road over the lands of the defendants in error. After the

was made by the commissioners, a trial by jury was demanded, and a trial

had in the district court, which resulted in a judgment against the railroad company for $4,573 and costs of suit. The company has appealed to this court and argue but two points in their brief.

The trial court gave the following instruction to the jury: "In determining the depreciation in value of this land by the construction and operation of a railroad across said land, if any depreciation has been caused. you have no right to include in your estimate any damages from loss by probable fires. The law requires the railroad company to pay for all losses occasioned by fires set out by it, and such losses cannot be recovered until they actually occur; nor can damages be allowed for the probable loss for killing stock or frightening teams. But if the mere fact of operating trains across the farm, with its probable attendant danger of fires, killing of stock, frightening teams, noises, etc., depreciates the salable value of the land and decreases its actual reasonable market value, then any such depreciation may be considered by you in assessing the damages to the remaining portion of said land."

It is contended by the appellant that the jury had no right to consider in any way possible fires or injury to stock, etc., as bearing upon the amount of damages. Let us consider the real effect of the instruction. The first part of it tells the jury that they cannot consider damages from loss by probable fires, etc., and in this statement the court had reference to such loss as an independent element of damages; but in the latter part of the instruction the court states that the jury may take into consideration the probable dangers of fires, and the killing of stock, the frightening of teams, noises, etc., in determining the detriment caused to the remaining portion of the land; and as to whether or not the operating of the company's trains would be attended by any probable dangers or inconveniences from these sources the jury were left to determine. But, if attended by dangers and inconveniences, and their presence affected the value of the land, the court said they might be considered in determining the defendants' (landowners') injury.

It is argued that these matters are too remote and are not contemplated by the law, and section 1041 of Wilson's Revised

and Annotated Statutes of 1903 is cited to support this position. That part of the section which is applicable is as follows: "The commissioners shall be duly sworn to perform their duties impartially and justly; and they shall inspect said real property and consider the injury which such owne may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land; and they shall forthwith make report thereof in writing to the clerk