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ed ballots was amended by the addition of subdivision 4 to section 1211, Political Code, reading as follows:

"No mark upon a ballot which is unauthorized by this act shall be held to invalidate such ballot, unless it shall appear that such mark was placed thereon by the voter for the purpose of identifying such ballot."

This provision has ever since been in force. The only purpose thereof was to prevent the rejection of ballots containing some unauthorized mark which was not the result of an intent on the part of the voter to identify his ballot. Theretofore the very stringent provisions regarding the marking and rejecting of ballots had been so construed by the courts as to result in the exclusion of numerous such ballots, although it was perfectly clear from an inspection of the ballots themselves that the mark was made without evil intent of any kind. The effect of the amendment is that, where there is no evidence whatever before the trial court, other than the ballot itself, unless such ballot is so marked as to warrant an inference by the trial court that the marking was designedly made by the voter for the purpose of identifying his ballot, the ballot must not be rejected on the ground that it bears a distinguishing mark. We so intimated in withholding our approval of a portion of the opinion of the District Court of Appeal in Gray v. O'Banion, 23 Cal. App. 468, 479, 138 Pac. 977, 981, citing this very provision of our law. Decisions relative to distinguishing marks rendered prior to the amendment we have referred to must be read in the light of the law as it then was. We find on none of the seven ballots to which we have referred anything warranting the inference that the unauthorized mark was placed thereon by the voter for the purpose of identifying the ballot, and there was no other evidence as to the intent of those marking the ballots. Counting these 7 ballots for Turner would give Wilson 165, and Turner 167.

2. Certain ballots counted by the trial court for Wilson, marked "Contestant's Objections A, E, I, J, M, P, U, X, A4, A5, A8, A9, and A10," were properly so counted. As to all of these except the ballot marked "Contestant's Objection P" we are satisfied with the views expressed by the District Court of Appeal in its opinion in this case. The District Court of Appeal held that the trial court should have rejected said ballot "P" on the ground that the same was really a vote for "W. E. Walson" instead of "Wilson," but an inspection of the ballot satisfies us that the trial court was warranted in concluding that the second letter was an "I" instead of an "A," making the name "Wilson." The same may be said as to certain ballots claimed to read "Welson" instead of “Wilson."

3. We have examined the other ballots referred to in the bill of exceptions as to

which objections were made, and from our examination we have concluded as follows: The ballot marked "Contestant's Objection D," containing a vote for Wilson, which was rejected by the trial court, should have been counted for Wilson. The same is true of ballots marked "K, L, N, Q, S, A2, and A3." It is obvious from the inspection of the ballot that the alleged identification mark on ballot "D" was not placed thereon with any intent to identify the ballot.

The

[2] The same is true of the pencil cross on ballot "L," opposite the name of "W. C. Wilson," written in by the voter. A cross is not essential in the case of a name written on the ballot (see subdivision 1, § 1211, Pol. Code), and the pencil cross cannot invalidate unless it appears that it was placed there for the purpose of identifying the ballot. same is true of ballot "N." The name written on ballot "K" for constable was clearly that of "Wilson." Ballot "Q" is exactly like ballot "D." Ballot "S" furnishes no support for the conclusion that the pencil mark was placed there for the purpose of identifying the ballot.

Ballots "A2 and A3" contain nothing making it appear that the alleged distinguishing marks thereon were placed thereon by the voter for the purpose of identifying the ballots. This makes 8 additional votes for Wilson, bringing his vote to 173.

[3] 4. Ballots marked "Contestee's Objections 16 and 17," each of which contained a vote for Turner, were rejected by the trial court. They should have been counted for Turner. In one case the voter had written in one of the voting squares provided for the vote on certain bond questions the word "Yes"; there being four such propositions so voted on by him. In the other case the voter had attempted to vote on such propositions by writing the word "No" in said voting squares. Whatever may be held to be the effect of this manner of voting on these particular propositions, it is perfectly clear that the word "Yes" in the one case and the word "No" in the other case were not placed on the ballot by the voter for the purpose of identifying his ballot. The addition of these two votes makes Turner's vote 169. It is to be noted that, in so far as alleged distinguishing marks are concerned, there was no evidence whatever before the court as to the intention of the voter saving and excepting the ballot itself. As to all of the ballots referred to in the bill of exceptions that we have not particularly discussed or mentioned we find that the trial court committed no error.

[4] There is no necessity for a new trial of this case. The bill of exceptions purports to contain an appropriate reference to all the ballots to which objection was made and the rulings of the court thereon, and it is clear that, counting such ballots as should be counted for Wilson and such ballots as should be counted for Turner, and excluding all bal

lots that should not be counted for either party, Wilson has 173 votes, and Turner 169 votes. The findings that contestee did receive the highest number of votes cast in such judicial township for said office of constable, and that it is not true that contestant received a majority of said votes, are fully supported by the evidence, and the mere fact that the findings are incorrect as to the exact number of votes received by each of the| parties does not require a reversal.

The judgment appealed from is affirmed.

We concur: SLOSS, J.; MELVIN, J.; HENSHAW, J.; LORIGAN, J.; LAWLOR, J.

SHAW, J. I concur in the opinion of the CHIEF JUSTICE. I think, however, that something additional should be said in regard to the seeming conflict between subdivisions 4 of section 1211 of the Political Code and the preceding portions of the chapter bearing on the subject of improper marks on the ballot. With respect to all these inconsistencies the case calls for the application of the rule expressed in section 4484 of the Political Code that, where there are conflicting provisions in different sections of the same chapter or article, "the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." The rule is founded in reason, and it exists independently of the Code. It therefore for like reasons applies to conflicting provisions of different subdivisions of a section. 1 Suth. Stat. Const. § 268.

There is also the rule that specific provisions relating to a particular branch of a subject must govern that branch, "as against general provisions in other parts of the statute, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate." Harrigan v. Home Ins. Co., 128 Cal. 537, 58 Pac. 180, 61 Pac. 99; Franzden v. San Diego, 101 Cal. 321, 35 Pac. 897; Earl v. Bowen, 146 Cal. 762, 81 Pac. 133; Healy V. Superior Court, 127 Cal. 662, 60 Pac. 428.

Since subdivision 4 is later in numerical order than any of the provisions conflicting therewith, it must, under the rule first stated, prevail over them, and, since it specifically provides that the intention of the voter to identify his ballot must appear before it could be declared invalid because of an unauthorized mark thereon, and there is no other specific provision on that precise subject, it must govern that subject, under the rule last stated.

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quires that the intention on the part of the voter to identify the ballot must appear. Similar reasons may be given regarding all of the other provisions supposed to conflict with subdivision 4 aforesaid.

It may be further said, with respect to the provision of subdivision 8 of section 1197, as amended in 1911 (St. 1911, p. 404), and of subdivision 10 of the amendments of 1913 (St. 1913, p. 1157) and 1915 (St. 1915, p. 272), providing that there shall be printed on the ballot certain instructions to voters, one of which is that distinguishing marks and erasures make the ballot void is not an enactment of substantive law at all, but a mere provision that certain cautions shall be given to the voter himself. These instructions to voters have been carried down in the same form from the time when the statute provided that every distinguishing mark should invalidate the ballot, and it apparently has not been perceived that subdivision 4 aforesaid changes the rule in that respect.

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A will declared that the testator had made

advances to his deceased son, and to the son's he had made advances to other children, as evichildren as shown by his books of account, that denced by their notes, and that it was the testator's will that such advances should be deducted from the shares of such children. The books of account showed payment by the testator of monthly allowances to his two daughters, and also contained credits in favor of the daughters, practically balancing their accounts. The daughters admitted that they had not made any payments to the testator. Held, that where there were no notes of the daughters showing advancements, the books of account were not admissible to charge them with the amounts paid as monthly allowances, the credits being disallowed, for the description of the notes were sufficiently definite to be binding.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1968, 1969; Dec. Dig. 761.] 3. WILLS 759-LEGACIES-ADEMPTION. Under Civ. Code, §§ 1351, 1397, declaring that advancements shall not be taken as adempApplying these rules, we will see that the tion of general legacies unless such intention is provision of subdivision 1 of section 1211 de- expressed, and that all gifts are made as adclaring that "in canvassing the votes any bal- vancements if expressed in the gift to be so lot which is not made as provided in this made, payments by testator of monthly allowances to his daughters, which were not evidencact shall be void" must yield to the later and ed by promissory notes, cannot be treated as adspecific provision of subdivision 4 which re-vancements, where the testator declared that the

154 PACIFIC REPORTER

(Cal.

advancements to his children were evidenced by | form to the findings. The cited section as notes.

[Ed. Note. For other cases, see Wills, Cent. Dig. 8 1961-1966; Dec. Dig.

759.]

4. WILLS 759- ADVANCEMENTS
TION.

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ADEMPAdvancements made before a will was executed cannot be considered in distributing the estate, unless specified in the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1961-1966; Dec. Dig. 759.]

5. WILLS 487 - CONSTRUCTION - FORMAL WILLS.

In construing a will, a former will which

was revoked cannot be considered.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. 487.]

6. WILLS 719-"CONTESTS"-WHAT ARE. That legatees opposed the petition of other legatees for distribution, claiming that they were not entitled to share under the will, does not show a contest of the will, but a proceeding for its construction; therefore the opponents will not be denied right to take under a provision, if any legatee or devisee should contest the will, his share should be $1.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1722-1725; Dec. Dig. 719.

For other definitions, see Words and Phrases, First and Second Series, Contest.]

Department 2. Appeal from Superior Court, Monterey County; B. V. Sargent, Judge.

In the matter of the Estate of William Vanderhurst, deceased. Petition by Mary A. Jacobs and another for distribution, opposed by William M. Vanderhurst and another. From the decree of distribution, petitioners appeal. Reversed.

Joseph J. Webb, of San Francisco (John K. Alexander, of Salinas, of counsel), for appellants. Vincent Surr, of San Francisco, and J. A. Bardin, of Salinas, for respondents. Alexander & Alexander, of Salinas, for ex

ecutors.

MELVIN, J. Mary A. Jacobs and Lillian M. Vanderhurst, daughters of William Vanderhurst, deceased, appeal from a decree of distribution in the estate of said deceased person.

The principal matter involved in this appeal is the action of the probate court in charging the two appellants with certain advancements. Miss Vanderhurst was debited with a sum in excess of $9,000 and thus Mrs. Jacobs with something over $2,000.

[1] Respondents make a preliminary objection to the consideration of the appeal. They say that appellants may only receive the aid which they seek by a new trial; that motions for new trial have been abolished in probate proceedings except in will contests (section 1714, Code Civ. Proc.), and that on an appeal from a decree of distribution the court may not order a retrial of the issues, but is limited to discovery of discrepancies (if any exist) between the findings and the decree and a modification of the decree to con

of this sort by doing away with the cumberamended merely fixes the procedure in a case some process of a motion for a new trial. It does not deprive this court of the right to excourt to do anything which may be proper amine the record and to direct the lower The amendment to section 1714, Code of Civil in the exercise of its probate jurisdiction. tions of this court that usually in probate Procedure, merely conformed to the declaralitigation motions for new trials and appeals therefrom needlessly raised difficult questions. Estate of Geary, 146 Cal. 107, 79 Pac. 855; Estate of Franklin, 133 Cal. 587, 65 Pac. 1081.

family of seven children. When his will was [2] William Vanderhurst originally had a made in 1912, two of his sons had died, leaving children. The will was an elaborate one. After providing for certain specific legacies and gifts it bequeathed and devised to each living child one-seventh of the residue, and of the said residue, for the benefit of the provided for two trusts, each of one-seventh children of the two deceased sons. The tenth paragraph was the one about which the disagreement arose. It was as follows:

"Inasmuch as I have from time to time, made derhurst, and to his three children, named hereadvances to my deceased son Robert Lee Vanin, amounting to the full sum of $4,954.50, as of my children, which advances to them, is repis shown by my books of account, and to others resented by their promissory notes now in my possession: It is my will, intention and desire that in the settlement and distribution of my herein set forth, to my said children and grandestate, that the amounts so advanced by me as other property that would come to them, or eichildren, shall be deducted from any money or ther of them, and that represented by the trust estate mentioned and described in the 'eighth' and ninth' sub-divisions of this my last will, and that the surplus thus arising, be given and distributed to my children, and said trustees for portions as I have indicated in and by this my my grandchildren, in the same shares and prograndchildren shall have or receive more than will, to the end that none of my children or an equal share of my estate."

The court interpreted this provision as examined for all purposes, and that all meaning that the books of account might be charges made therein against the two daughters might be regarded as advancements to counsel for appellants, were admitted in evithem. The books, despite the objections of Robert Lee Vanderhurst and his children and dence, not only to show the charges against against those heirs who had given promissory notes, but for all purposes. showed that to each of the daughters William Vanderhurst had given a monthly allowance, and had credited each with a like amount, so that according to the books their accounts were practically closed; the balances being merely nominal. The court, however, permitted evidence, which was drawn by respondents from the appellants themselves, that they had paid no money to their father,

The accounts

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Indeed, were the will silent as to the father's full intent to treat his children with exact justice, a stranger might blunder into the error of supposing that the artificial credits shown in the ledger were placed there to absolve these fair debtors from their obligations."

and thereupon the court disregarded the as, where it is to papers not yet existent, or credits, but charged the two daughters with where the reference is so vague as to be inall sums received from their father. Com- applicable to any particular instrument. But menting upon this ruling, counsel for re- this court adopts the language of the Court spondents says in his brief: of Appeals of New York in Brown v. Clark, 77 N. Y. 369, to the effect that any testamentary document may be incorporated into a will by reference, provided the language of the will clearly identifies the paper or renders it capable of identification. And the court in the Plumel matter was discussing not a mere evidence of debt, but a solemn instrument of testamentary nature, which was held to be incorporated into another such The will specified writing by reference. "notes now in my possession." Surely such allusion to notes was capable of being made certain. It was quite as definite as the reference to "books of account." We find no language in the will, therefore, which justifies the action of the court in charging the shares of Mrs. Jacobs and Miss Vanderhurst in their father's estate with debits shown on the books of account, or in striking out credits formally entered by Mr. William Vanderhurst in favor of his daughters. Advancements are not to be taken as ademptions of general legacies unless such intention is expressed by Section 1351, Civ. the testator in writing. Code. Section 1397 of the Civil Code is as follows:

We fail to see how any other conclusion could be reached, after reading the will and examining the accounts, than that the testator intended to do that very thing-"to absolve" his daughters from all charges. But under the interpretation of the tenth clause of the will which we feel bound to give, the book of account was not admissible for the purpose of showing advancements to the appellants. The language of the will very aptly limits and specifies funds to be charged with payments made in the testator's lifetime as advancements. These are the trust estate created for the benefit of Robert Lee Vanderhurst's children, and the shares of those who had given notes to the testator. By no method of construction which we are able to discover may the language be given any other meaning. Advancements are to be charged against the shares of Robert Lee Vanderhurst and his children in accordance with the book accounts, and all notes are to be regarded as evidences of advancements. Respondents contend that the closing words of the paragraph compel a different interpretation. By the first part of the tenth paragraph the testator had provided a method of determining the amounts to be subtracted before division of the property and the words "to the end that none of my children or grandchildren shall have or receive more than an equal share of my estate" merely declare his purpose in charging these advancements. The mere fact that the court believed the method chosen might not achieve the purposed end would not justify charges against certain heirs which were not directed in the will. Such impositions may not be made by the court in an effort to achieve equal distribution. To permit such a course would be equivalent to allowing the court to make a will for the decedent. If the closing words of the tenth clause would justify the court in going to such lengths to achieve equal distribution, then might the specific legacies to the daughters with like reason be disregarded, because such legacies, in a sense, were opposed to an evenly divided bestowal of decedent's estate.

[3] Respondents contend that the descriptions of the notes contained in the will are too vague to be of binding force, and in this behalf they cite certain cases. One of these is Estate of Plumel, 151 Cal. 82, 90 Pac. 192, 121 Am. St. Rep. 100, which correctly states the rule that reference in a will may be of

"All gifts and grants are made as advancements, if expressed in the gift or grant to be so made; or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir."

There were no promissory notes produced at the hearing in the probate court which the appellants, or either of them, had executed in favor of the testator. The will itself, as we have seen, did not charge them with any sums paid to them as advancements, and no writing was produced whereby they were chargeable under section 1397 of the Civil Code. Surely there was nothing in the books of account which would justify their admission under section 1397, Civil Code, or by which the testator evinced any intent to charge the items against his daughters as advancements rather than gifts or loans. Estate of Hayne, 165 Cal. 573, 133 Pac. 277, Ann. Cas. 1915A, 926. On the contrary, the credits indicated that Mr. Vanderhurst intended the payments as gifts, except, perhaps, the trifling balances against the daughters, and those may be regarded as loans rather than advancements.

[4] Moreover, it is a general rule that advancements made before the will was executed cannot 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 Hayne, supra; 1 A. & E. Enc. of

8

N. Y. 432, 83 N. E. 472; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85.

The judgment must be reversed because of the errors in charging appellants with any sums as advancements. This conclusion makes it unnecessary for us to discuss all of the matters appearing in the briefs. Some of them, however, require attention.

[5] The court erred in admitting in evidence a former will executed by Mr. Vanderhurst in 1906 and revoked by the later will. The will before us must be interpreted by the language used therein, and cannot be varied or explained by an instrument executed several years earlier. Estate of Tompkins, 132 Cal. 175, 64 Pac. 268.

[6] There was a provision in the will that in case any legatee or devisee contested it his or her share of the estate should be $1. Appellants argue that the respondents William M. and George B. Vanderhurst contested the will. The mere statement of this contention refutes it. They opposed the petition for distribution, but they did not seek, in any way, to contest the will. They merely sought interpretation of it.

No other alleged errors merit discussion.
The decree of distribution is reversed.

We concur: HENSHAW, J.; LORIGAN, J.

Modification of Opinion.

PER CURIAM. Good cause appearing therefor, it is hereby ordered that the judgment of this court in the matter of the aboveentitled appeal be and hereby is amended to read as follows:

"It follows herefrom that the court erred in charging the appellants with these advancements. Wherefore, and to this extent, the decree of distribution is reversed, with directions to the court in probate to modify its decree in accordance with this opinion and judgment."

ROBSON v. SUPERIOR COURT IN AND
FOR CITY AND COUNTY OF SAN
FRANCISCO et al. (S. F. 7001.)
(Supreme Court of California. Dec. 17, 1915.)
1. NEW TRIAL 163-EFFECT OF AWARD OF
NEW TRIAL TO CODEFENDANT.

Where, in a suit to foreclose a mortgage, in which successive purchasers of the mortgaged property, who had severally assumed payment of the mortgage, were made defendants, and a deficiency judgment was rendered against all of the defendants, one of the defendants who had filed no cross-complaint, and in whose favor no affirmative relief had been given, could not be affected by the award of a new trial to

one of the defendants in so far as his liability on the deficiency decree as formerly rendered was concerned.

maintain prohibition to prevent a trial of the
issues between the plaintiff and the defendant
to whom a new trial was awarded.
[Ed. Note.-For other cases, see Prohibition,
Cent. Dig. §8 57-60; Dec. Dig. 15.]
3. PROHIBITION

ABLE.

9

WRIT WHEN ISSU

In such case, where the application for writ of prohibition to prevent trying the case anew as to the other defendants contained the undenied allegation that the court was about to retry the case as to all defendants, the defendants other than the one who moved for a new trial were entitled to a writ of prohibition. Cent. Dig. § 35; Dec. Dig. 9.] [Ed. Note.-For other cases, see Prohibition,

In Bank. Proceeding in prohibition by Kernan Robson against the Superior Court of the State of California in and for the City and County of San Francisco and others. Writ issued.

Jas. P. Sweeney, of San Francisco, for petitioner. J. J. Lermen, of San Francisco (Chas. L. Tilden, of San Francisco, of counsel), for respondents.

MELVIN, J. This is a proceeding in prohibition. The petition was addressed to this court originally, and an alternative writ was issued. The facts are as follows:

In September, 1908, the Hibernia Savings & Loan Society sued to foreclose a mortgage on real property. The original mortgagor was Theresa Lewin. Jacob Lewin was joined as her husband, and the other defendants, sued as successors to the interest of Mrs. Lewin in the order in which they were named and as persons who had assumed the payment of the note secured by the mortgage, were Kernan Robson (petitioner herein), Michael O'Toole, Curtis Hillyer (sued as C. H. Lieutemps), John G. Hoyt, the corporation known as Tilden, Swayne & Co., and Louis James. Other defendants were designated by fictitious names. The cause was tried, and judgment was given in favor of plaintiff. The court found that there had been successive conveyances, as pleaded, with corresponding assumptions of the indebtedness, and drew the conclusions of law that plaintiff was entitled to foreclosure and to a judgment declaring Theresa Lewin, Robson, O'Toole, Hillyer (sued as Lieutemps), and Hoyt personally liable for the amount of the mortgage debt. The judgment was entered October 5, 1911.

On December 7, 1911, the motion of Hoyt for a new trial was served and filed. On December 8, 1911, the foreclosure sale took place, the plaintiff becoming the purchaser, and a deficiency judgment, which, on April 2, 1912, amounted to more than $14,000, was on that date docketed against Theresa Lewin, Robson, O'Toole, Hillyer, and Hoyt. The 15-PERSONS BENEFICIAL-deed of the commissioner to plaintiff was executed December 18, 1912. Hoyt's motion for a new trial was denied on February 21, 1913. When said motion was called on the court's

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 330-332; Dec. Dig. 163.] 2. PROHIBITION

LY INTERESTED.

In such case a defendant other than the one to whom a new trial was awarded was not beneficially interested, and was not entitled to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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