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ed ballots was amended by the addition of, which objections were made, and from our subdivision 4 to section 1211, Political Code, examinåtion we have concluded as follows: reading as follows:

The ballot marked "Contestant's Objection "No mark upon a ballot which is unauthorized | D,” containing a vote for Wilson, which was by this act shall be held to invalidate such bal- | rejected by the trial court shonla have

rejected by the trial court, should have been lot, unless it shall appear that such mark was placed thereon by the voter for the purpose of

counted for Wilson. The same is true of balidentifying such ballot."

lots marked "K, L, N, Q, S, A2, and A3." It This provision has ever since been in force.

is obvious from the inspection of the ballot The only purpose thereof was to prevent the

that the alleged identification mark on balrejection of ballots containing some unau

lot "D" was not placed thereon with any inthorized mark which was not the result of

tent to identify the ballot. an intent on the part of the voter to identi

[2] The same is true of the pencil cross on fy his ballot. Theretofore the very stringent

| ballot “L,” opposite the name of “W. C. Wilprovisions regarding the marking and re

son," written in by the voter. A cross is not jecting of ballots had been so construed by

essential in the case of a name written on the courts as to result in the exclusion of

the ballot (see subdivision 1, § 1211, Pol. numerous such ballots, although it was per

Code), and the pencil cross cannot invalidate fectly clear from an inspection of the ballots

| unless it appears that it was placed there for themselves that the mark was made without

the purpose of identifying the ballot. The evil intent of any kind. The effect of the same is true of ballot “N.” The name writamendment is that, where there is no evi

no eviten on ballot "K" for constable was clearly dence whatever before the trial court, other |

that of "Wilson." Ballot “Q” is exactly like than the ballot itself, unless such ballot is

ballot “D.” Ballot “S” furnishes no support so marked as to warrant an inference by the for the conclusion that the pencil mark was trial court that the marking was designedly placed there for the purpose of identifying made by the voter for the purpose of identi. the ballot. Ballots "A2 and A3” contain fving his ballot. the ballot must not be re-nothing making it appear that the alleged jected on the ground that it bears a dis- distinguishing marks thereon were placed tinguishing mark. We so intimated in with thereon by the voter for the purpose of idenholding our approval of a portion of the tifying the ballots. This makes 8 additionopinion of the District Court of Appeal in al votes for Wilson, bringing his vote to 173. Gray v. O'Banion, 23 Cal. App. 468, 479, 138 [3] 4. Ballots marked "Contestee's ObjecPac. 977, 981, citing this very provision of tions 16 and 17," each of which contained a our law. Decisions relative to distinguish- vote for Turner, were rejected by the trial ing marks rendered prior to the amendment court. They should have been counted for we have referred to must be read in the Turner. In one case the voter had written light of the law as it then was. We find on in one of the voting squares provided for the none of the seven ballots to which we have vote on certain bond questions the word referred anything warranting the inference “Yes"; there being four such propositions that the unauthorized mark was placed so voted on by him. In the other case the thereon by the voter for the purpose of iden- voter had attempted to vote on such propotifying the ballot, and there was no other sitions by writing the word "No" in said votevidence as to the intent of those marking ing squares. Whatever may be held to be the ballots. Counting these 7 ballots for the effect of this manner of voting on these Turner would give Wilson 165, and Turner particular propositions, it is perfectly clear 167.

that the word "Yes" in the one case and the 2. Certain ballots counted by the trial word “No” in the other case were not placed court for Wilson, marked "Contestant's Ob- on the ballot by the voter for the purpose of jections A, E, I, J, M, P, U, X, A4, A5, A8, identifying his ballot. The addition of these A9, and A10," were properly so counted. As two votes makes Turner's vote 169. It is to to all of these except the ballot marked “Con- be noted that, in so far as alleged distintestant's Objection P” we are satisfied with guishing marks are concerned, there was no the views expressed by the District Court of evidence whatever before the court as to the Appeal in its opinion in this case. The Dis- intention of the voter saving and excepting trict Court of Appeal held that the trial the ballot itself. As to all of the ballots court should have rejected said ballot “P” referred to in the bill of exceptions that we on the ground that the same was really a have not particularly discussed or mentioned vote for "W. E. Walson" instead of "Wilson," we find that the trial court committed no erbut an inspection of the ballot satisfies us | ror. that the trial court was warranted in con- [4] There is no necessity for a new trial cluding that the second letter was an “I” in- of this case. The bill of exceptions purports stead of an "A," making the name “Wilson," to contain an appropriate reference to all the The same may be said as to certain ballots ballots to which objection was made and the claimed to read “Welson" instead of "Wil- rulings of the court thereon, and it is clear son."

| that, counting such ballots as should be 3. We have examined the other ballots re-counted for Wilson and such ballots as should

lots that should not be counted for either | quires that the intention on the part of the party, Wilson has 173 votes, and Turner 169 | voter to identify the ballot must appear. votes. The findings that contestee did re- Similar reasons may be given regarding all ceive the highest number of votes cast in of the other provisions supposed to conflict such judicial township for said office of con- with subdivision 4 aforesaid. stable, and that it is not true that contestant It may be further said, with respect to received a majority of said votes, are fully the provision of subdivision 8 of section 1197, supported by the evidence, and the mere fact as amended in 1911 (St. 1911, p. 404), and of that the findings are incorrect as to the ex- subdivision 10 of the amendments of 1913 act number of votes received by each of the (St. 1913, p. 1157) and 1915 (St. 1915, p. 272), parties does not require a reversal.

providing that there shall be printed on the The judgment appealed from is affirmed. ballot certain instructions to voters, one of

which is that distinguishing marks and eraWe concur: SLOSS, J.; MELVIN, J.; sures make the ballot void is not an enactHENSHAW, J.; LORIGAN, J.; LAWLOR, J. ment of substantive law at all, but a mere

provision that certain cautions shall be given SHAW, J. I concur in the opinion of the

to the voter himself. These instructions to CHIEF JUSTICE. I think, however, that

voters have been carried down in the same something additional should be said in regard

form from the time when the statute proto the seeming conflict between subdivisions 4

+ between subdivisions 4 vided that every distinguishing mark should of section 1211 of the Political Code and the

| invalidate the ballot, and it apparently has preceding portions of the chapter bearing on

not been perceived that subdivision 4 aforethe subject of improper marks on the ballot. / said changes the rule in that respect.

With respect to all these inconsistencies the case calls for the application of the rule expressed in section 4484 of the Political In re VANDERHURSTS ESTATE. Code that, where there are conflicting pro JACOBS et al. v. VANDERHURST et al. visions in different sections of the same chap

(S. F. 7258.) ter or article, “the provisions of the sections (Supreme Court of California. Dec. 16. 1915. last in numerical order must prevail, unless Modification of Opinion Jan. 12, 1916.) such construction is inconsistent with the l1. APPEAL AND ERROR 1178-REVIEW-DEmeaning of such chapter or article.” The

CREE OF DISTRIBUTION. rule is founded in reason, and it exists inde While Code Civ. Proc. 8 1714, abolished pendently of the Code. It therefore for like new trials in probate proceedings except in will

contests, an appellate court may, on appeal from reasons applies to conflicting provisions of

a decree of distribution, order the doing of any. different subdivisions of a section. 1 Suth. thing which the probate court should have done Stat. Const. § 268.

in the exercise of its jurisdiction. There is also the rule that specific provi- _[Ed. Note.--For other cases, see Appeal and sions relating to a particular branch of a

Error, Cent. Dig. 88 4604_4620; Dec. Dig, en

a 1178.1 subiect must govern that branch, was against 2. WuLs 761 - CONSTRUCTION - ADMISSI. general provisions in other parts of the stat-|

u provisions in other parts of the state BILITY OF ACCOUNTS. ute, although the latter, standing alone, A will declared that the testator had made would be broad enough to include the subject advances to bis deceased son, and to the son's

children as shown by his books of account, that to which the more particular provisions re

T he had made advances to other children, as evilate." Harrigan v. Home Ins. Co., 128 Cal. denced by their notes, and that it was the testa537, 58 Pac. 180, 61 Pac. 99; Franzden v. tor's will that such advances should be deducted San Diego, 101 Cal. 321, 35 Pac. 897; Earl

from the shares of such children. The books of

account showed payment by the testator of v. Bowen, 146 Cal. 762, 81 Pac. 133; Healy v.

monthly allowances to his two daughters, and alSuperior Court, 127 Cal. 662, 60 Pac. 428.

2. 428. I so contained credits in favor of the daughters. Since subdivision 4 is later in numerical practically balancing their accounts. The daugh

ters admitted that they had not made any payorder than any of the provisions conflicting

ments to the testator. Held, that where there therewith, it must, under the rule first stat were no notes of the daughters showing advanceed, prevail over them, and, since it specifical ments, the books of account were not admissible ly provides that the intention of the voter to to charge them with the amounts paid as month

ly allowances, the credits being disallowed, for identify his ballot must appear before it

" the description of the notes were sufficiently could be declared invalid because of an unau- definite to be binding. thorized mark thereon, and there is no other [Ed. Note.--For cther cases, see Wills, Cent. specific provision on that precise subject, it | Dig. 88 1968, 1969; Dec. Dig. 761.] must govern that subject, under the rule last 3. WILLS 759-LEGACIES-ADEMPTION. stated.

Under Civ. Code, $8 1351, 1397, declaring

that advancements shall not be taken as adempApplying these rules, we will see that the

ures, 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 allow

ances to his daughters, which were not evidencact shall be void" must yield to the later and led by promissory notes, cannot be treated as adspecific provision of subdivision 4 which re- vancements, where the testator declared that the advancements to his children were evidenced by form to the findings. The cited section as notes.

amended merely fixes the procedure in a case [Ed. Note. For other cases, see Wills, Cent.

of this sort by doing away with the cumberDig. $$ 1961–1966; Dec. Dig. Om759.)

some process of a motion for a new trial. It 4. WILLS Om759 — ADVANCEMENTS — ADEMP

does not deprive this court of the right to exTION.

amine the record and to direct the lower Advancements made before a will was executed cannot be considered in distributing the court to do anything which may be proper estate, unless specified in the will

in the exercise of its probate jurisdiction. [Ed. Note.-For other cases, see Wills, Cent. The amendment to section 1714, Code of Civil Dig. 88 1961–1966; Dec. Dig. Om759.)

Procedure, merely conformed to the declara5. WILLS 487 - CONSTRUCTION – FORMAL | tions of this court that usually in probate WILLS.

litigation motions for new trials and appeals In construing a will, a former will which was revoked cannot be considered.

therefrom needlessly raised difficult ques[Ed. Note. For other cases, see Wills, Cent.

tions. Estate of Geary, 146 Cal. 107, 79 Pac. Dig. 88 1023, 1026–1032; Dec. Dig. Om487.] 855; Estate of Franklin, 133 Cal. 587, 65 6. WILLS 719_"CONTESTS"-WHAT ARE.

Pac. 1081. That legatees opposed the petition of other [2] William Vanderhurst originally had a legatees for distribution, claiming that they family of seven children. When his will was were not entitled to share under the will, does

made in 1912, two of his sons had died, leavnot show a contest of the will, but a proceeding for its construction; therefore the opponents

ing children. The will was an elaborate one. will not be denied right to take under a provi After providing for certain specific legacies sion, if any legatee or devisee should contest the and gifts it bequeathed and devised to each will, his share should be $1. Ed. Note. For other cases, see Wills, Cent.

living child one-seventh of the residue, and Dig. 88 1722-1725; Dec. Dig. Om719.

provided for two trusts, each of one-seventh For other definitions, see Words and Phrases,

of the said residue, for the benefit of the First and Second Series, Contest.)

children of the two deceased sons. The tenth

paragraph was the one about which the disDepartment 2. Appeal from Superior

agreement arose. It was as follows: Court, Monterey County; B. V. Sargent,

"Inasmuch as I have from time to time, made Judge.

advances to my deceased son Robert Lee VanIn the matter of the Estate of William derhurst, and to his three children, named hereVanderhurst, deceased. Petition by Mary A. I in, amounting to the full sum of $4,954.50, as

is shown by my books of account, and to others Jacobs and another for distribution, opposed

of my children, which advances to them, is repby William M. Vanderhurst and another. resented by their promissory notes now in my From the decree of distribution, petitioners possession: It is my will, intention and desire appeal. Reversed.

that in the settlement and distribution of my

estate, that the amounts so advanced by me as Joseph J. Webb, of San Francisco (John K.

herein set forth, to my said children and grand

children, shall be deducted from any money or Alexander, of Salinas, of counsel), for appel

other property that would come to them, or eilants. Vincent Surr, of San Francisco, and ther of them, and that represented by the trust J. A. Bardin, of Salinas, for respondents. estate mentioned and described in the eighth' Alexander & Alexander, of Salinas, for ex

and 'ninth' sub-divisions of this my last will,

and that the surplus thus arising, be given and ecutors.

distributed to my children, and said trustees for my grandchildren, in the same shares and pro

I portions as I have indicated in and by this my MELVIN, J. Mary A. Jacobs and Lillian |

will, to the end that none of my children or M. Vanderhurst, daughters of William Van-grandchildren shall have or receive more than derhurst, deceased, appeal from a decree of an equal share of my estate." distribution in the estate of said deceased! The court interpreted this provision as person.

meaning that the books of account might be The principal matter involved in this ap- examined for all purposes, and that all peal is the action of the probate court in charges made therein against the two daughcharging the two appellants with certain ad-ters might be regarded as advancements to vancements. Miss Vanderhurst was thus them. The books, despite the objections of debited with a sum in excess of $9,000 and counsel for appellants, were admitted in eviMrs. Jacobs with something over $2,000. dence, not only to show the charges against

[1] Respondents make a preliminary objec- Robert Lee Vanderhurst and his children and tion to the consideration of the appeal. They against those heirs who had given promissory say that appellants may only receive the aid notes, but for all purposes. The accounts which they seek by a new trial; that mo showed that to each of the daughters Wiltions for new trial have been abolished in liam Vanderhurst had given a monthly alprobate proceedings except in will contests lowance, and had credited each with a like (section 1714, Code Civ. Proc.), and that on amount, so that according to the books their an appeal from a decree of distribution the accounts were practically closed; the balances court may not order a retrial of the issues, being merely nominal. The court, however, but is limited to discovery of discrepancies permitted evidence, which was drawn by re(if any exist) between the findings and the de- spondents from the appellants themselves, cree and a modification of the decree to con- that they had paid no money to their father, 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, "Indeed, were the will silent as to the father's 77 N. Y. 369, to the effect that any testamenfull intent to treat his children with exact jus- tary document may be incorporated into a tice, a stranger might blunder into the error of supposing that the artificial credits shown in

will by reference, provided the language of the ledger were placed there to absolve these

the will clearly identifies the paper or renfair debtors from their obligations."

ders it capable of identification. And the We fail to see how any other conclusion

court in the Plumel matter was discussing could be reached, after reading the will and not a mere evidence of debt, but a solemn examining the accounts, than that the testa

instrument of testamentary nature, which tor intended to do that very thing—"to ab

was held to be incorporated into another such solve" his daughters from all charges. But

writing by reference. The will specified under the interpretation of the tenth clause

“notes now in my possession." Surely such of the will which we feel bound to give, the

allusion to notes was capable of being made book of account was not admissible for the

certain. It was quite as definite as the referpurpose of showing advancements to the ap

ence to "books of account.” We find no lanpellants. The language of the will very aptly

guage in the will, therefore, which justifies limits and specifies funds to be charged with

the action of the court in charging the shares payments made in the testator's lifetime as

of Mrs. Jacobs and Miss Vanderhurst in their advancements. These are the trust estate

father's estate with debits shown on the created for the benefit of Robert Lee Vander

books of account, or in striking out credits hurst's children, and the shares of those who

formally entered by Mr. William Vanderhurst had given notes to the testator. By no meth

in favor of his daughters. Advancements od of construction which we are able to dis- are not to be taken as ademptions of general cover may the language be given any other legacies unte

legacies unless such intention is expressed by meaning. Advancements are to be charged

the testator in writing. Section 1351, Civ. against the shares of Robert Lee Vanderhurst

Code. Section 1397 of the Civil Code is as and his children in accordance with the book Tollows:

| follows: accounts, and all notes are to be regarded as

"All gifts and grants are made as advanceevidences of advancements. Respondents

ments, if expressed in the gift or grant to be

so made; or if charged in writing by the dececontend that the closing words of the para- dent as an advancement, or acknowledged in graph compel a different interpretation. By writing as such, by the child or other successor the first part of the tenth paragraph the tes or heir." tator had provided a method of determining There were no promissory notes produced the amounts to be subtracted before division at the hearing in the probate court which the of the property and the words "to the end appellants, or either of them, had executed that none of my children or grandchildren in favor of the testator. The will itself, as shall have or receive more than an equal we have seen, did not charge them with any share of my estate" merely declare his pur- sums paid to them as advancements, and no pose in charging these advancements. The writing was produced whereby they were mere fact that the court believed the method chargeable under section 1397 of the Civil chosen might not achieve the purposed end Code. Surely there was nothing in the books would not justify charges against certain of account which would justify their admisheirs wbich were not directed in the will. sion under section 1397, Civil Code, or by Such impositions may not be made by the which the testator evinced any intent to court in an effort to achieve equal distribu- charge the items against his daughters as adtion. To permit such a course would be vancements rather than gifts or loans. Esequivalent to allowing the court to make a tate of Hayne, 165 Cal. 573, 133 Pac. 277, will for the decedent. Jf the closing words of Ann. Cas. 1915A, 926. On the contrary, the the tenth clause would justify the court in credits indicated that Mr. Vanderhurst ingoing to such lengths to achieve equal dis- tended the payments as gifts, except, pertribution, then might the specific legacies to haps, the tritling balances against the daughthe daughters with like reason be disregard ters, and those may be regarded as loans ed, because such legacies, in a sense, were op- rather than advancements. posed to an evenly divided bestowal of dece-l [4] Moreover, it is a general rule that addent's estate.

vancements made before the will was exe[3] Respondents contend that the descrip-cuted cannot be considered in distributing the tions of the notes contained in the will are estate unless specified in the will, because it too vague to be of binding force, and in this is presumed that the testator had in view all behalf they cite certain cases. One of these previous advancements when he made his is Estate of Plumel, 151 Cal. 82, 90 Pac. 192, will and acted accordingly, so as to make the 121 Am. St. Rep. 100, which correctly states final division conform to his actual wishes. the rule that reference in a will may be of Estate of Hayne, supra; 1 A. & E. Enc. of

ABLE.

N. Y. 432, 83 N. E. 472; Needles v. Needles, maintain prohibition to prevent a trial of the 7 Ohio St. 432, 70 Am. Dec. 85.

issues between the plaintiff and the defendant

to whom a new trial was awarded. The judgment must be reversed because of

[Ed. Note.-For other cases, see Prohibition, the errors in charging appellants with any

Cent. Dig. 88 57-60; Dec. Dig. @ 15.] sums as advancements. This conclusion

3. PROHIBITION 9 – WRIT-WHEN Issumakes it unnecessary for us to discuss all of the matters appearing in the briefs. Some of In such case, where the application for writ them, however, require attention.

of prohibition to prevent trying the case anew

as to the other defendants contained the unde[5] The court erred in admitting in evi

nied allegation that the court was about to retry dence a former will executed by Mr. Vander- the case as to all defendants, the defendants hurst in 1906 and revoked by the later will. other than the one who moved for a new trial The will before us must be interpreted by the were entitled to a writ of prohibition. language used therein, and cannot be varied

(Ed. Note.-For other cases, see Prohibition,

Cent. Dig. § 35; Dec. Dig. 9.] or explained by an instrument executed seyeral years earlier. Estate of Tompkins, 132 In Bank. Proceeding in prohibition by Cal. 175, 64 Pac. 268.

Kernan Robson against the Superior Court [6] There was a provision in the will that of the State of California in and for the City in case any legatee or devisee contested it and County of San Francisco and others. his or her share of the estate should be $1. Writ issued. Appellants argue that the respondents Will Jas. P. Sweeney, of San Francisco. for peLiam M. and George B. Vanderhurst contested titioner. J. J. Lermen, of San Francisco the will. The mere statement of this conten- | (Chas. L. Tilden, of San Francisco, of countion refutes it. They opposed the petition for sell for respondents distribution, but they did not seek, in any way, to contest the will. They merely sought

MELVIN, J. This is a proceeding in prointerpretation of it.

hibition. The petition was addressed to this No other alleged errors merit discussion. The decree of distribution is reversed.

court originally, and an alternative writ was issued. The facts are as follows:

In September, 1908, the Hibernia Savings We concur: HENSHAW, J.; LORIGAN, J.

& Loan Society sued to foreclose a mortgage

on real property. The original mortgagor Modification of Opinion.

was Theresa Lewin. Jacob Lewin was joinPER CURIAM. Good cause appearing led as her husband, and the other defendants, therefor, it is hereby ordered that the judg-sued as successors to the interest of Mrs. ment of this court in the matter of the above Lewin in the order in which they were namentitled appeal be and hereby is amended to ed and as persons who had assumed the payread as follows:

ment of the note secured by the mortgage, “It follows. herefrom that the court erred in were Kernan Robson (petitioner herein), charging the appellants with these advance- Michael O'Toole, Curtis Hillyer (sued as C. ments. Wherefore, and to this extent, the de

H. Lieutemps), John G. Hoyt, the corporacree of distribution is reversed, with directions to the court in probate to modify its decree in

tion known as Tilden, Swayne & Co., and accordance with this opinion and judgment." Louis James. Other defendants were desig

nated by fictitious names. The cause was tried, and judgment was given in favor of

plaintiff. The court found that there had ROBSON V. SUPERIOR COURT IN AND

been successive conveyances, as pleaded, with FOR CITY AND COUNTY OF SAN FRANCISCO et al. (S. F. 7001.)

corresponding assumptions of the indebted

ness, and drew the conclusions of law that (Supreme Court of California. Dec. 17, 1915.)

| plaintiff was entitled to foreclosure and to a 1. NEW TRIAL 163-EFFECT OF AWARD OF judgment declaring Theresa Lewin, Robson, NEW TRIAL TO CODEFENDANT. Where, in a suit to foreclose a mortgage,

O'Toole, Hillyer (sued as Lieutemps), and in which successive purchasers of the mortgaged Hoyt personally liable for the amount of the property, who had severally assumed payment mortgage debt. The judgment was entered of the mortgage, were made defendants, and a l October 5, 1911. deficiency judgment was rendered against all of the defendants, one of the defendants who

| On December 7, 1911, the motion of Hoyt

on December 1, 1811, had filed no cross-complaint, and in whose fa- for a new trial was served and filed. On Devor no affirmative relief had been given, could cember 8, 1911, the foreclosure sale took not be affected by the award of a new trial to

place, the plaintiff becoming the purchaser, one of the defendants in so far as his liability on the deficiency decree as formerly rendered was

and a deficiency judgment, which, on April concerned.

2, 1912, amounted to more than $14,000, was [Ed. Note.-For other cases, see New Trial, on that date docketed against Theresa LewCent. Dig. $$ 330-332; Dec. Dig. Om163.] in, Robson, O'Toole, Hillyer, and Hoyt. The 2. PROHIBITION O 15—PERSONS BENEFICIAL- Ideed of the commissioner to plaintiff was exLY INTERESTED.

ecuted December 18, 1912. Hoyt's motion for In such case a defendant other than the one to whom a new trial was awarded was not a new trial was denied on February 21, 1913. beneficially interested, and was not entitled to When said motion was called on the court's

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