to the plaintiff was known to the defendant. Plaintiff testified that he met defendant's attorney some time after that suit was commenced in Los Angeles, and said: "I asked him what he meant by suing me, and he said: 'Well, I thought you were a stockholder, or possibly had subscribed for a lot of that Richardson-Kimball Company's stock, and, like Richardson and Kimball, you had never paid for it, and that-' He told me I would have been liable if I had, but said he had since discovered that I had not subscribed for any, and he promised me never to hurt me; that I would not be hurt in that suit; that I need not give it any attention at all. As a result of what he said to me with reference to my defending the suit brought by Lothian, I gave the thing no further attention, and just supposed the matter ended there. I was back East, and gave the thing no further attention. Q. Did you believe that he would do as he said, and not take any steps against you? A. Why, yes. He told me that he had discovered that I had subscribed for no stock at all, and that he had brought this suit in a kind of sweeping way against all the men that he had heard had subscribed for any of the stock, with the hope of finding some that had not paid theirs; and that they were liable if they had subscribed, and had not paid for the stock; and he found out that Richardson and Kimball had done that, and he didn't know but what I had when he brought the suit and served me; but he had afterwards found out I didn't subscribe for any, and that I need not give the thing no consideration or further thought at all; that he would promise me I wouldn't get hurt. That was the thing ended right there." The judgment roll in Carter against the Richardson-Kimball Company was introduced, showing a deficiency judgment in favor of the plaintiff, and a garnishment against the Los Angeles National Bank thereunder for all moneys, credits, etc., belonging to the Richardson-Kimball Company; and also the judgment roll in the case of Carter against the Los Angeles National Bank to enforce said garnishment, which latter case shows that the defendant, Lothian, was a party to that action. Said bank filed a cross complaint in said action, asking that all parties making claims against said fund belonging to the Richardson-Kimball Company in its hands be required to interplead, which they did; and said defendant, Lothian, in his answer to said cross complaint, made no claim against said Carter, nor did he ask a preference as against him to the fund in litigation. Defendant's attorney, in his testimony, stated that he discovered that Carter was a stockholder in the Richardson-Kimball Company just about the time he commenced the suit. "I got my information from George Granger, and understood from him that Mr. Carter was owing something on his stock in the Rich

ardson-Kimball Company. I did not understand how much. Q. What evidence did you have or produce that he was owing the Richardson-Kimball Company? A. Well, I never had any further evidence than that. Q. You never produced any evidence in the court did you that he was owing? A. Not to my recollection. By the Court: You did know that he had begun an action against the company for fourteen or fifteen hundred dollars? A. Oh, yes. Q. By Plaintiff's Attorney: In the conversation you have referred to with me, did you ever state to me that you had taken any default or judgment against Carter? A. No. I never mentioned it in the world to you." Without going into the testimony further in detail, it is sufficient to say that there is enough to support the findings, both as to the merits and upon the plea of the statute of limitations.

The motion for new trial coming on to be heard in department 5 of the Los Angeles superior court, Judge Shaw, presiding, before whom the cause had been tried, transferred the hearing of said motion for a new trial to department 2 of the same court. Appellant contends that this transfer of the cause from one department to another, against his objection, is error. There is nothing in this contention. Under the present constitution, whatever the population or amount of business, there is but one court of general jurisdiction in each county, to wit, the superior court. This court may be and is provided with such number of judges as required to transact the judicial business before said court. The so-called "departments" are unknown to the constitution, but have been adopted for convenience by the judges in apportioning the business before Isaid court, which they are authorized to do by the constitution. There may be held "as many sessions of said court at the same time as there are judges thereof," and "the judgments, orders, and proceedings of any session of the superior court held by any one or more of the judges of said courts, respectively, shall be equally effectual as if all the judges of said respective courts presided at such session." Const. art. 6, §§ 6, 7. By this scheme, where there is more than one judge provided for the court, such judges may interchange among themselves in holding court, and, in case one be sick, absent, or engaged in the trial of other causes, another judge of such court can step in and fill his place, and thus prevent the interruption of judicial business. Any judge, therefore, of the superior court of Los Angeles county, had jurisdiction to hear and determine the motion for new trial in this case. The motion for a new trial, under our system of procedure, is an independent collateral proceeding. An affirmance of the judgment on direct appeal therefrom does not prevent the court below from setting aside the verdict, or finding and judgment based thereon, and granting a new trial.

Spanagel v. Dellinger, 42 Cal. 148; 1 Hayne, New Trials & App. p. 27; McDonald v. McConkey, 57 Cal. 325; Naglee v. Spencer, 60 Cal. 10; Knowles v. Thompson (Cal.; in bank; filed June 14, 1901) 65 Pac. 468. There is no showing in this case why the judge of department 2 could not hear the motion for a new trial as well as the judge of department 5 of that county, and the cause may have been transferred for the reason that the judge of department 5 at the time was engaged in the trial of other causes. Nothing appearing to the contrary, the presumption will be in favor of the regularity of the proceeding.

The other points presented by appellant are not of sufficient importance to receive special consideration. Judgment and order affirmed.

We concur: GAROUTTE, J.; HARRISON, J.

(133 Cal. 485)

BANNING v. MARLEAU. (L. A. 864.) (Supreme Court of California. July 30, 1901.) REPLEVIN-FINDINGS-RIGHT OF POSSESSION OF OWNERSHIP AFFIDAVITS ATTACHMENT-ENTRY ON JUSTICE'S DOCKET-EVIDENCE FRAUDULENT CONVEYANCE SUBSEQUENT CREDITORS-STATEMENTS OF VENDOR-APPEAL AND ERROR.

1. Where plaintiff claimed title and right to possession of personalty under a bill of sale in an action to recover the property from an officer who attached it as the property of the former owner, a finding that plaintiff acquired no title, and that it belonged to and was in the possession of the defendant in the writ, is sufficient to support a judgment against plaintiff, without an express finding that plaintiff was not entitled to possession.

2. Where affidavits on which an attachment was issued were lost, and the contents proved by parol, and the judgment received in evidence without objection, an objection on appeal that the evidence does not support a finding that an attachment issued, because the docket does not show that affidavits were filed, should be overruled, since Code Civ. Proc. § 911, does not require the entry in the justice's minutes of this fact.

3. Where the bill of exceptions contains a statement that writs of attachment and their returns were received in evidence, an objection that the record does not show a formal attachment of the goods in controversy should be overruled.

4. Where plaintiff, who claimed property under a bill of sale, testified that she was aware that the vendor was insolvent, and he testified that his object in giving the bill of sale was to keep the property on the ranch; that it was not a drop in the bucket towards paying his debts, the evidence is suflicient to support a finding that the bill of sale was fraudulent as to his creditors.

5. Where actual fraud in a sale of property is established, the sale is void as to subsequent creditors of the vendor, as well as to prior creditors.

6. Where there has been a colorable transfer of personal property, with no visible change of possession, and there is satisfactory proof of a conspiracy to defraud the creditors of the vendor, his declarations, both antecedent and subsequent to the transfer, are competent to establish the fraud.

7. Where, before a cause is submitted for

HENSHAW, J. The facts concerning this action and the law of the case will be found in the opinions of this court upon former appeals, reported in 101 Cal. 238, 35 Pac. 772, and 121 Cal. 240, 53 Pac. 692. This trial was without a jury. The value of the property was stipulated. The court found against the plaintiff, and gave judgment for defendant for the return of the property, or its value, $600. Plaintiff appeals.

The property had been seized under writs of attachment issued by the justice's court in an action in which one Dr. Hannon was defendant. It was taken from the possession of Dr. Hannon while upon a ranch which was the property of the plaintiff. The plaintiff claimed title to the property under a bill of sale from Dr. Hannon. Dr. Hannon's testimony, which was accepted by the court, showed the sale was colorable merely, was not intended by the parties to be a transfer of the title, but was designed as a fraud against the creditors of Dr. Hannon, to save the property from attachments and execution levies which he feared. Hannon was at the time, according to his own testimony, overwhelmingly in debt. The findings are supported by the evidence.

The numerous technical points urged by appellant have been given due consideration, but for the most part they do not merit discussion. It is contended, for example, that the judgment is not supported by the findings, because of the absence of a finding as to the right of possession at the time of the commencement of the action; and the cases of Cooke v. Aguirre, 86 Cal. 479, 25 Pac. 5, and Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750, are relied on. In those cases the plaintiff had recovery. The basis of plaintiff's right of recovery was his right of possession at the time of the commencement of the action, and the cases were properly reversed because of the absence of a finding as to the value of the property, and an absence of a finding as to the amount of plaintiff's damage. What application they can have to this case, where the value is stipulated. where the findings of the court are wholly against the ownership of the plaintiff, and declare that at the time of the attachments levied by the constable Hannon was the owner and in possession of the property, we fail to perceive, and upon it we are not en

lightened. Again, the affidavits upon which the attachments had been issued from the justice's court were lost, and it thereby became necessary by secondary evidence to prove these papers and their contents. This was done, and the judgments in the cases admitted in evidence, without objection; but the objection is here made to the sufficiency of the evidence supporting the findings that the docket of the justice does not show that affidavits upon attachment were filed. The law does not require the entry in the justice's minutes of this fact. Code Civ. Proc. 911. Again, it is said that there is no evidence in the record to show any formal attachment or any return by the officer. The writs and their returns were offered and admitted in evidence, and the bill of exceptions contains a statement of this fact. Again, it is said that there is no evidence to show that Hannon was indebted to any person at the time he gave the bill of sale. The plaintiff herself testifies that she had become aware of the fact that Dr. Hannon had become insolvent, and unable to pay his proportion of the debt of the ranch. Hannon testified to the same effect, and, explaining how he gave the fraudulent bill of sale, says that the object was to keep the property on the ranch. "I did not want it attached for my debts, and thought it might be. It was not a drop in the bucket towards paying them." Again, it is said that the attaching creditor was a creditor subsequent to the giving of the bill of sale, and that the sale was valid, therefore, as to him. There is no evidence in the record to this effect, saving the evidence that the promissory notes, which were the foundation of the action in the justice's court, were dated subsequent to the date of the bill of sale. But the testimony is that the notes were given by Hannon on account of a long-existing debt; and even in the case of subsequent creditors, where actual fraud is established, the sale is void as to them as well as to prior creditors. Bump, Fraud. Conv. § 295; Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538, 29 Am. St. Rep. 111.

Appellant further complains of the rulings of the court in permitting evidence as to the statement of Dr. Hannon concerning the ownership of the property after he had made the bill of sale. The answer to this is twofold: (1) Where there has been a colorable transfer of personal property, with no visible change of possession or control, and where there has been satisfactory proof of conspiracy to defraud, hinder, or delay the creditors of the vendor, his declarations, both antecedent and subsequent to the transfer, are competent to establish the fraud. "They are admissible, not because any peculiar credit is due to the party in possession, but because they qualify and characterize the very fact to be investigated." Bump, Fraud. Conv. §§ 598-600. (2) Before the submission of the cause for decision, the court ordered

1. Under Code Civ. Proc. § 1665, providing that on the final settlement of the accounts of the executor, or at any subsequent time, the court may proceed to distribute the residue of the estate, the court has not jurisdiction to decree distribution of the estate on a petition filed after the final account was filed, but before it was settled; nor is such decree authorized by section 1663, which relates only to partial distribution.

2. Where testatrix devised to her son all her interest in the estate owned by his father, her first husband, and the remainder of her property to her second husband and his children, a final decree distributing certain specific property to the latter "and any other property not now known or discovered which may belong to said estate, or in which it may be interested," is erroneous, since such provision might carry any after-discovered property belonging to her

first husband.

3. A legatee is not prejudiced because property in which he has no interest is improperly distributed by the final decree.

4. An executor cannot appeal from a final decree on the ground that the property is improperly distributed.

5. Where an executor, in his final account, stated that all the money of deceased went into the hands of his co-executor, and was used in settlement of the estate, and all the legatees interested stipulate that the account of the latter is correct, it is not error to allow the latter's account without vouchers.

6. Where the evidence warrants a finding that an executor did not pay certain taxes charged in his account, and for which he produced receipts, the order disallowing such charges should not be reversed.

7. Where, during the settlement of an estate, the property was occupied by the family, including the executor, he should not be allowed extra compensation for his services in excess of his commissions.

8. In fixing the commissions of an executor, the inventory value of the property is not conclusive, but the actual market value may be shown, and used as the basis.

9. Where a small sum of money left by testatrix was received and used by appellant's co-executor for the benefit of the estate, it was not error to exclude such sum from the computation in fixing appellant's commissions.

10. Where an executor acts also as attorney for the estate, such services do not necessarily entitle him to extra compensation.

11. Pol. Code, $ 3752, providing that decree of distribution of an estate shall not be made until the taxes are paid, is to protect the revenues of the state, and has no application where the tax has in fact been paid, though the one who made the payment has a tax title to the property therefor.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Appeal by William P. Stout from a decree allowing the account of G. A. Coursen as an executor of the will of Jeanie A. Coursen, deceased, and disallowing the account of appellant as co-executor, and from a decree of distribution of her estate. Decree settling accounts affirmed, and decree distributing the estate reversed.

G. Gunzendorfer, for appellant. Martin Stevens, for respondents.

CHIPMAN, C. Jeanie A. Coursen died tescate in 1877, naming William P. Stout and G. A. Coursen as executors, and her will was shortly after duly probated, and letters issued to the executors. An inventory was filed, and notice to creditors published. No claims have been presented against the estate. The property consisted of $180 in money and certain real property on Fulton street, in San Francisco, which was occupied by the family of deceased. Respondent Coursen was the second husband of deceased, and appellant, Stout, was her son by her first husband. She left seven children of the second marriage, all of whom had reached majority before the final accounts and the petition for distribution were filed. It appeared by executor Coursen's final account that he received all the money, and he testified that he disbursed it in expenses of administration; but he filed no vouchers. By the will of deceased, appellant was left all the interest she had in the estate of her deceased first husband, Jacob W. Stout, father of appellant. To her children by the second marriage, of whom there were seven, the testatrix devised her real estate, being her separate property, share and share alike. There was a provision of the will that the land should remain a residence for her sons and daughters until the youngest of them should become of age, and "until that time should not be sold, incumbered, mortgaged, or otherwise disposed of"; and when that period arrived the land was to be divided among the children equally, or sold, and the proceeds thus divided, “as the majority of my said sons and daughters may then elect." It was also provided that, if any of her sons or daughters should die without lawful issue, his or her portion should go to such of her children as may survive. She requested that the real property described in the will should remain as a home and place of residence for her husband until the time for its disposition should arrive. Two of the seven children died in the city of San Francisco after attaining their majority, and pending administration, namely, Grant, a son, and Geraldine, a daughter; and there was evidence that they were never married. On October 29, 1898, the five surviving children and the co-exec

utor, Coursen, filed their petition asking that the administration be brought to a close, and for distribution of the estate remaining in the hands of the executors to the five surviving children. Executor Coursen filed his first and final account and accompanying report September 28, 1898, and executor Stout filed his first and final account and report on October 7, 1898. On October 19, 1898, executor Coursen and the five children filed their objections to the account of executor Stout, and on November 15, 1898, the latter filed objections to the allowance of his co-executor's account. Thereafter, and on November 15, 1898, the separate final accounts came on to be heard, the hearing was continued to November 18th, and, after being partly heard, the hearing was again continued to December 1, 1898, when executor Stout filed a demurrer to the petition for distribution on the ground that it did not state sufficient facts, and at the same time he filed objections and exceptions by way of answer to the petition for distribution on various grounds. One ground was that there had been no administration of the estates of the two deceased children, and that the court cannot now determine the proportions of the assets of the estate to be distributed to the heirs thereof. Another ground was that his co-executor, Coursen, had suffered a tax title to become a lien on the premises. Most of the allegations of the petition were specifically denied. The hearing of the accounts was had on December 1, 1898, testimony taken, and evidence, documentary and other, heard, and "the matter of said accounts was submitted to the court for consideration and decision; and thereafter, on the 30th day of December, 1898, the said court rendered and made its decision and decree approving and settling the account of said G. A. Coursen, and disapproving and disallowing the account of said William P. Stout, to which said William P. Stout duly excepted; and thereafter, on December 31, 1898, the said decision and decree of said court was filed." It appears from the record that on the 30th of December, 1898, the court overruled the demurrer to the petition for distribution, and "also denied and overruled and disregarded the answer of said Stout to said petition for distribution, to all of which said Wm. P. Stout duly excepted; and thereupon said court made its judgment and decree distributing the estate of said Jeanie A. Coursen, deceased, which said judgment and decree was filed on the 31st day of December, 1898." The decree makes distribution of all the estate,-two-sevenths to co-executor Coursen, husband of testatrix, and one-seventh each to the five surviving children of the second marriage. distribution was made of the interest of deceased in the estate of her first husband, father of executor Stout, to whom this interest was bequeathed. The appeal is by

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No

executor Stout from the decree allowing the account of executor Coursen, and disallowing the accounts of executor Stout, and from the decree of distribution.

1. In the specifications of errors of law appellant makes the objection that the court was without jurisdiction to make distribution for the reason that the petition for final distribution was not filed with the final account, but was filed afterwards, and before the final account was settled. The point was before the court in Re Sheid's Estate, 122 Cal. 528, 55 Pac. 328, and directly decided, and it was held that the court in such case did not acquire jurisdiction. The statutory provisions were fully pointed out in the opinion, and the question clearly elucidated, and the decision must rule this case. Respondents reply that the petition need not be considered under section 1665, Code Civ. Proc., but may be regarded as filed under section 1663 of that Code. The latter section relates wholly to partial distribution, and contains provisions with which there was no pretense of complying in the present matter. The petition here was brought under the provisions relating to final distribution, and the decree was for final distribution. Apparently it was just such a case as In re Sheid's Estate. The decree was without authority, and must be reversed.

There are some other questions connected with the decree of distribution which should be noticed. In the will of the testatrix she devises to her son William P Stout all her right and interest in and to the estate owned by his father, her first husband, at his death. The decree distributes the residue of said estate "hereinafter particularly described" to the second husband of the testatrix and to her surviving children by him, describing the property, "and any other property not now known or discovered, which may belong to the said estate, or in which the said estate may have any interest." There is at least a question whether this provision would not carry any after-discovered property belonging to the testatrix's first husband at his death, and would bind her legatee, Stout, as he is a party to the proceeding. And this doubt is strengthened by the fact that the decree makes no mention of his right to any such property. We think the decree should have made some disposition of this asset of the estate.

It is objected by appellant that under the terms of the will the court could not decree any of the property to the testatrix's surviving husband. This question might have importance if legatee Stout claimed any interest in the property; but, as he makes no claim to any property except that specifically devised to him, and as the other devisees could consent to distribution to their father, as they seem to have done, the decree in this respect was not prejudicial to appellant.

Appellant makes the objection that there could be no distribution of the interest of the deceased children, Grant and Geraldine, in the estate, until after separate administration of their several estates. We see no objection to the decree in this regard. Moreover, appellant, as executor, cannot be heard as to the distribution made. Bates v. Ryberg, 40 Cal. 463. See, also, In re Welch's Estate, 106 Cal. 427, 39 Pac. 805, where certain limitations of the rule are pointed out, within which appellant does not bring himself. As legatee he is not aggrieved, because he makes no claim to any share of the deceased children's property.

2. All the legatees, except appellant, filed written consent to the approval of the account as rendered by executor Coursen. In appellant's account, which is verified, he states that the only money left by deceased, to wit, $180, was taken possession of by his co-executor, "and by him used in paying necessary expenses incurred during the administration of the affairs and business of said estate." All parties agreeing that the money was properly expended, and executor Stout not being interested as a legatee of and making no claim on the money, there was no error prejudicial to appellant in allowing the account without vouchers. Appellant was secured for any commissions to be allowed him and for attorney's fees by the real property to be distributed, and titioners offered in their petition to pay all commissions and charges.

3. Appellant's account consisted of sundry charges for moneys alleged to have been paid out by him for taxes on the real property of the estate and for improving the street in front of the property, aggregating $956.32. He produced certain tax receipts, showing that the taxes had been paid to and received by the tax collector; but they do not show on their face who paid the money. Appellant testified that he paid a considerable portion of it. There is evidence contradictory of his testimony, however, and on the question of payment by him the evidence is conflicting. From the testimony in the case the court was warranted in disallowing appellant's claim for the disbursements alleged in his account.

4. The court allowed one-half the commissions to appellant on the basis of $20,000 as the value of the estate accounted for by executor Stout, being one-half of $920, and the court also allowed to executor Stout $50 as attorney's fees. It is claimed by appellant that he should have been allowed extra compensation for services as executor, and also should have been allowed a larger attorney's fee. We can discover no grounds for any greater allowance. The real property was in the possession of the family all the time, and during much of which appellant was an inmate of the family, and occupied a room in the dwelling. Appellant