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3. EXECUTORS AND ADMINISTRATORS (§ 20*)- whether or not it was still in force when
RIGHT OF WIDOW TO APPOINTMENT DI- Martin died.
VORCE-RESUMPTION OF MARITAL RELATION
-SUFFICIENCY OF EVIDENCE.

Evidence in a proceeding by a widow, who was divorced by interlocutory decree before her husband's death, for appointment as administratrix held not to show the resumption of marital relations or the abandonment of the divorce suit before the husband's death.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 83-105; Dec. Dig. § 20.*]

4. EXECUTORS AND ADMINISTRATORS (§ 17*) APPOINTMENT-RIGHT OF WIDOW-DIVORCE. The fact that, after a husband and wife had executed a contract embodying a mutual waiver of all rights in the other's estate, they had sexual intercourse, but without occupying the same habitation as husband and wife, would not show the abrogation of the contract so as to entitle the wife to letters of administration on the husband's subsequent death.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 43-59; Dec. Dig. § 17.*]

Department 2. Appeal from Superior Court, Santa Clara County; P. F. Gosbey, Judge.

In the matter of the estate of Charles J. Martin, deceased. From an order granting a petition of Hipolite J. Martin for letters of administration, and denying the petition of

Cora H. Martin, the latter appeals. Affirmed.

Will M. Beggs and R. C. McComish, both of San Jose, for appellant. Louis Oneal and William F. James, both of San Jose, for respondent.

MELVIN, J. Cora H. Martin, the widow of Charles J. Martin, and Hipolite J. Martin, his son, each filed a petition for letters of administration upon the estate of said Charles J. Martin, deceased. The court, pursuant to stipulation, heard both petitions together, and made an order granting the prayer of Hipolite J. Martin, and another denying the application of the widow. From these orders, she appeals.

[2] The existence of the interlocutory decree would not take away the right of the widow to administer. Estate of Dargie, 162 Cal. 52, 121 Pac. 320. And appellant contends that her uncontradicted testimony establishes a reconciliation between herself and her husband, together with conduct which amounted to such resumption of marital relations as, under the authorities, amounts to an annulment of the contract whereby she agreed to forbear all claim of interest in her husband's estate. It is not necessary to repeat the language of the contract. That instrument contains a complete waiver by each party of all rights of any kind in the other's estate. Let us then examine Cora H. Martin's testimony regarding her relations with her husband after the entry of the interlocutory decree. She swore that very soon after the trial she met her husband in a candy store in San Jose. She was weeping, and he, calling her names of

endearment, begged her not to cry. He asked

permission to call upon her, and did call Mr. Martin declared his intention of returnAccording to her testimony, many times. ing to live with her when he should get back his property which had passed into the control of his children. She told of sexual relations between her and her husband occurring at frequent intervals between the time of the entry of the interlocutory decree and his final illness. A number of letters written by Mr. Martin to his wife during the early part of the year 1912 were introduced in evidence. These were couched in affectionate terms. She was addressed as "Dear Corita," and he signed "Your loving husband" or "Yours lovingly." In some of them there are expressions which might indicate a wish on his part for a reconciliation. They also contain admonitions to her to control her temper, and in one is the statement that he and she had not understood each other. Not one of them contains a request for the resumption of marital relations. Indeed, in one he writes, "If you think your comfort and happiness will serve you better by remaining South, why do so." Mr. Martin, according to appellant's statement, furnished her with money "on an average of from $50 to $75 a month" up to the time of his illness, which began about March 1, 1912, and also paid her bills. the day before he was taken down with his last illness there was a conversation between them, a portion of which was related by Mrs. Martin, as follows: "He said to me, 'Cora, how do you feel about my coming back?' I answered, 'I want you to come back, and it is a duty you owe me.' He said, 'Yes; I know, dear, and I want to come back; I am It is only necessary to examine the con- going to try again, and, if I can arrange tract and to consider the conduct of the matters, I will be back next week.'" The spouses after its execution in determining witness also said: "During the various con•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1] Under ordinary conditions, and unless she waives that right in some way, the widow is entitled to letters of administration. In this case it appeared that on August 29, 1911, Charles J. Martin and Cora H. Martin entered into an agreement, settling certain property rights, and containing a waiver by her of all claim of interest in his estate and all rights therein after his death. Later Charles J. Martin sued her for divorce, and on September 23, 1911, an interlocutory decree in his favor was entered. Martin died in April, 1912. The lower court reached the conclusion that the agreement was sufficient, if in force, to cut off the rights of Cora H. Martin to administer, and that in fact it was in full effect at the time of the death of Charles J. Martin.

On

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versations between Mr. Martin and myself, after detailing the chief condition that she in which we discussed returning one to the must be assured one-third of his property by other, there were conditions imposed by me deed or will, she said: "When he was taken as they should be to a wife. The condition down with his last illness, it had not been I imposed was a will. Once he suggested fully decided on what would be done." This, deeding me a portion of the Second street taken in conjunction with the undisputed property; I expected one-third of his prop- fact that after the trial of the action for dierty, and, whenever he saw fit to give me that vorce Mr. Martin lived with his daughter, one-third, I was willing to receive him back is cogent proof that no conduct on the part as a loving wife should receive her husband. of the spouses had set aside the contract by When he was taken down with his last ill-which Mrs. Martin waived her right to share ness, it had not been fully decided on what in her husband's estate. would be done."

[3] The lower court determined that, conceding "for the sake of argument" that the relations between Martin and his wife after the entry of the interlocutory decree were as stated by her, yet resumption of marital relations was not proven. In this we think the learned judge reached the proper conclusion. Neither Martin's visits, nor his letters, nor the payment of her bills, nor the sending of money to her, nor his words of endearment, nor the sexual intercourse amounted to the abandonment of the divorce proceeding, nor the abrogation of the antecedent contract between the spouses. Both petitioners cite the case of Wells v. Stout, 9 Cal. 479; but that case, which has been followed in this and other jurisdictions, does not help appellant. There the contention" was made that, as Mrs. Stout gave birth to a child in 1852 (the contract was dated in 1850), access of her husband must be presumed; that access meant reconciliation; and that reconciliation avoided the agreement. The court found that reconciliation would have avoided the agreement, and, while deciding that there was no sufficient proof of the birth of a child, held that even proof of access would not necessarily establish such reconciliation as would avoid the deed of trust; the court saying: "To effect this end, the reconciliation must be permanent, and be followed by cohabitation. It must be a reconciliation which restores the former relations of the parties." This doctrine was reasserted in the later case of Sargent v. Sargent, 106 Cal. 546, 39 Pac. 931. Measured by this rule, the testimony of Mrs. Martin utterly fails to support her contention that the contract was set aside.

[4] Mere copulation without occupying the same habitation and dwelling there as husband and wife is by no means sufficient to sustain such a conclusion. Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131; People v. Lehmann, 104 Cal. 634, 38 Pac. 422. By her own statement Mrs. Martin indicates that there was no reconciliation in the sense in which that word is used in the decisions, for she was imposing conditions which must be met before she would permit her husband to live at her place of abode. And she made a statement which utterly destroys the theory of complete resumption of marital relations be fore the death of Charles J. Martin, because,

The orders from which these appeals are taken are affirmed.

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The board of county supervisors passed a resolution declaring that a road along the line of a survey previously made was a public neceshad been subscribed by individuals, that the sity, that probably enough money to construct it property owners along the entire length had offered to deed the county a right of way across their land, and that the defendant supervisor and substantial road following the line of sur was authorized to build and construct a good vey. Held that, even though defendant voted for the resolution, the building of this road was only amounting to an authorization to expend not a part of his official duty; the resolution funds donated for a particular purpose, and, as the statutes make no provision for the construction, the supervisor, in constructing such road, is a mere volunteer.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. § 96.*]

2. HIGHWAYS (§ 97*)-OFFICERS
BOND-LIABILITY.

OFFICIAL

Where a county supervisor in constructing a road was a mere volunteer, not acting in his official capacity, the sureties on his official bond cannot be joined in an action against him for damages for failure to complete the road, as the bond was given to indemnify against neglect of duty in the supervisor's official capacity only.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 318; Dec. Dig. § 97.*] 3. HIGHWAYS (§ 96*) — COMPLAINT

CIENCY.

- SUFFI

In an action against a county supervisor which alleged that plaintiff was in possession of for the nonconstruction of a road, the complaint," property abutting on the proposed road and entitled to sell and dispose of it, and that if the road had been constructed he could and would for uncertainty, not showing plaintiff's interest have disposed of it at a profit of $15,000, is bad in the abutting land.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. § 96.*]

4. HIGHWAYS (§ 96*)-COMPLAINT
CIENCY.

SUFFI

A complaint, seeking damages for the nonconstruction by a county supervisor of a proposed county road which, according to the resosubscriptions, is bad for uncertainty, where it lution of the board, was to be built from private does not show whether the money expended by

plaintiff on the construction of parts of the road | Supervisor King be, and he is, hereby aubuilt by him was his own or that subscribed; the allegation being that plaintiff expended $500

of the money subscribed.

[Ed. Note.-For other cases, see Highways, Cent. Dig. $$ 313, 314, 316, 317, 319-322, 356; Dec. Dig. § 96.*]

5. HIGHWAYS (§ 96*)-LIABILITY OF OFFICER -FAILURE TO COMPLETE ROAD-DAMAGES.

In an action for damages for the nonconstruction of a proposed road, no recovery can be had upon a mere speculative estimate of the increase in the value of the realty which would result from the improvement.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319–322, 356; Dec. Dig. § 96.*]

6. HIGHWAYS (§ 96*)-COMPLAINT INDEFI

NITENESS.

way.

[Ed. Note. For other cases, see Highways, Cent. Dig. $$ 313, 314, 316, 317, 319-322, 356; Dec. Dig. § 96.*]

thorized to build and construct as and for a county road, a good and substantial road foilowing the line as surveyed by George H. Winkler, county surveyor, along the south side of Russian river, between Guerneville and Monte Rio. Said work of construction to progress and be proceeded with as money heretofore subscribed is paid into the Bank of Guerneville for that purpose; and be it further resolved, that upon the completion of the said road and upon the execution and delivery to the county of Sonoma of good and sufficient deeds to the right of way along said line of road, this board accept said road as and for a public county road of the county In an action for damages for the noncon- of Sonoma, on behalf of said county." There struction of a county road, the complaint, al- are averments that King began work on the leging that plaintiff was in possession and en-road under the authorization of the resolutitled to sell and dispose of land abutting on the tion of the supervisors; that the moneys reproposed road and that had it been constructed he could have sold it at a profit of $15,000, is ferred to in the resolution were at all times bad for indefiniteness not showing a definite of- available for the construction of the road; fer contingent upon the construction of the high- but that soon after commencing said construction King, without good and sufficient reason, discontinued work thereon and declared his intention not to proceed further with the enterprise. The complaint sets forth the expenditure by plaintiff of "$500 of the money subscribed, as stated in the aforesaid resolution, for the building and construction of said road," and charges that by reason of the noncompletion of the road plaintiff was damaged to that amount. There are averments of the necessity of the contemplated road as a means of egress and ingress from and to plaintiff's property and of plaintiff's dependence upon the resolution and upon King's action thereunder. Plaintiff pleads that the road should have been completed by March 1, 1911; that he relied upon King's completion of the work by that time; and that if it had been so completed he could and would have sold the property at a profit and gain to him of $15,000; and that, by reason of King's acts in refusing and neglecting to construct and complete the road plaintiff was damaged in the sum of $15,000, for which sum he also prays judgment. The surety company is sought to be joined as the sole bondsman upon King's official bond.

Department 2. Appeal from Court, Sonoma County; Emmet Judge.

Superior
Seawell,

Action by William P. Jost against William King and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Wm. Hoff Cook, of San Francisco, for appellant. Clarence F. Lea and G. W. Hoyle, both of Santa Rosa, for respondents.

MELVIN, J. Plaintiff appeals from a judgment rendered after the sustaining of defendants' demurrer to the complaint and plaintiff's refusal to amend. The complaint contains allegations that King was at all times mentioned therein a supervisor of the county of Sonoma; that the plaintiff "was in possession and entitled to sell and dispose of" a certain described tract of land in that county; and that on June 10, 1910, by a unanimous vote of the board of supervisors of Sonoma county a certain resolution was passed. The resolution is then fully pleaded as follows: "Whereas, it appears to be a public [1, 2] Defendants' demurrer to the comnecessity for a county road to be built along plaint is both general and special. It specithe line of survey heretofore made by George fies want of facts, misjoinder of parties deH. Winkler, county surveyor, of a road ex- fendant, and numerous alleged uncertainties. tending from Guerneville to Monte Rio in We need not discuss all of these specificaSonoma county, California, along the south- tions of the demurrer. Upon the ground of erly side of Russian river, and whereas, there misjoinder, the demurrer was properly sushas already been subscribed by individuals tainable, and this is true even if we regard living in the vicinity of said proposed road, the action as one against King in his official an amount of money which will probably be capacity, although it does not clearly appear sufficient to construct said road in a proper that he was so sued. In the title of the acmanner, and whereas, the property owners tion he is mentioned personally and not in along practically the entire length of said his official capacity, but from the body of the proposed road have offered to deed to the complaint it perhaps sufficiently appears that county of Sonoma a right of way across their the pleader intended to allege a cause of aclands: Now, therefore, be it resolved, that tion against him as a supervisor. But it does •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

land aforesaid" at a profit of $15,000. It does not appear whether plaintiff possessed the land as tenant or owner, or whether his right to sell arose from ownership, agency, or option. The defendant was entitled to know the nature and extent of the interest of the plaintiff. A special demurrer took advantage of this deficiency in the pleading, and the demurrer was properly sustained on that point.

[4] The allegation with reference to the $500 damages fails to show whether the amount expended was plaintiff's money or belonged to some one else. It is averred that "$500 of the money subscribed, as stated in the aforesaid resolution, for the building and construction of said road, was paid out and expended by plaintiff, with the knowledge of said defendant King, in the construction and building of portions thereof, and, by reason of the noncompletion of said road as aforesaid by said defendant King, the plaintiff has been damaged in the sum of $500." From this statement it does not appear whether plaintiff spent his own money or that of some subscriber or subscribers who are not here seeking any relief. The demurrer was therefore properly sustainable for this uncertainty.

not appear from any aspect of the pleading road had been constructed, plaintiff “could that the defendant was bound as a supervisor and would have sold and disposed of his said to do the work authorized by the resolution. This was not the ordinary proceeding for the construction of a public road, nor were the duties of the supervisor as outlined by the resolution merely ministerial. The resolution amounts only to an authorization to expend funds donated for a particular purpose. It is true that Mr. King voted for the resolution, but that fact did not make the road building a part of his official duty. He was to exercise his discretion regarding the sort of road to be built. No specifications of material or width or grades were mentioned in the resolution. He was to build a "good and substantial road" over a designated route. He was not limited in the matter of time or material. The duties of a supervisor and road commissioner are defined by statute. None of those duties so defined has reference to the building of a road with contributed funds over a route not yet the property of the county. It appears from the resolution that at the time of its passage, although practically all of the property owners along the route of the proposed road had offered to deed the necessary right of way, they had not done so. The resolution therefore referred to work to be performed where at that time the county could have no more than a [5, 6] The damage of $15,000 is indefinitely license, and the pleading does not disclose pleaded. In one of the paragraphs of the any subsequent action by the landowners in complaint appears the statement that, if deeding the rights of way. This was there the road had been completed by March 1, fore not a command by the supervisors to a 1911, "plaintiff could and would have sold road commissioner to construct a public road and disposed of his said land aforesaid, at upon land which had been acquired by the said time, at a profit and gain to him of $15,county either by purchase or condemnation. 000, but, by reason of the acts and misconIt was a mere authorization that he might un- duct of said defendant King as aforesaid, the dertake the supervision of a road intended as plaintiff was prevented from so selling and a gift to the county, and upon its completion disposing of his said land." Obviously the and the filing of the necessary deeds for a damages sought are merely speculative. right of way the board agreed to accept it There is no pleading of a definite offer of as and for a public road. If one of the prop-purchase of the land, contingent upon the erty owners along the route had refused to building of the road, which was defeated by permit King upon the land of such owner, he the failure to complete the highway. It is would have been powerless to do anything a mere speculative estimate of the increase under the resolution, but would have been in the value of realty which would result compelled to await the board's further action. from the contemplated improvement. DamIt is plain, therefore, that he was a mere ages based upon such an uncertainty are too volunteer and not bound under his official remote for practical adjudication. Purely obligation. As his bond was given to indem-conjectural profits are not recoverable. Paola nify against neglect of duty in his official Gas Co. v. Paola Glass Co., 56 Kan. 622, 44 capacity, it follows that there was a misjoinder in making the surety company a party defendant. County of San Luis Obispo v. Farnum, 108 Cal. 563, 41 Pac. 445.

[3] It does not appear by distinct averment that the plaintiff owned the land described in his complaint. It is alleged that he was "in possession of and entitled to sell and dispose of" the property. Later it is mentioned as "plaintiff's property as described in paragraph II hereof"-the paragraph where his possession and right to sell are

Pac. 621, 54 Am. St. Rep. 598; Hunt Bros. Co. v. San Lorenzo Water Co., 150 Cal. 55, 87 Pac. 1093, 7 L. R. A. (N. S.) 913; Pendleton v. Cline, 85 Cal. 143, 24 Pac. 659; Witmer Bros. Co. v. Weid, 108 Cal. 580, 41 Pac. 491. This allegation was also tainted with the uncertainty previously discussed arising out of the plaintiff's failure definitely to allege the kind of interest, if any, which he had in the property.

The judgment is affirmed.

(166 Cal. 403)

SHORES et al. v. WITHERS. (S. F. 6,187.) (Supreme Court of California. Nov. 25, 1913.) 1. LOST INSTRUMENTS (§ 2*)—ESTABLISHMENT

AND RESTORATION.

Under Civil Code,

3415, providing that an action may be maintained by any person interested in any private instrument in writing, lost or destroyed by conflagration or other public calamity, to establish and compel the reissuance of such instrument, where land was conveyed as security for a debt, and a deed of reconveyance executed and delivered, which was destroyed, the debtor's distributees were entitled to have such deed re-executed and delivered to them, whether or not, as claimed, the debt had not been paid, and the destroyed deed was delivered on condition that it should not be effective until such payment, since the owner of the destroyed instrument is entitled to be placed in a position in which he will not be compelled to establish his rights by secondary evidence, even though the instrument to be restored is voidable.

[Ed. Note.-For other cases, see Lost Instruments, Cent. Dig. §§ 6-20, 63; Dec. Dig. § 2.*] 2. LOST INSTRUMENTS (§ 2*)-RESTORATION

ACTIONS ON RESTORED INSTRUMENT
FENSES.

DE

Under Civil Code, § 3415, providing that an action may be maintained to prove and compel the reissuance and execution of any private, lost instrument, if the maker of such restored instrument has a defense not apparent upon the face thereof, he may assert it precisely as he might have done had the document not been destroyed.

[Ed. Note.-For other cases, see Lost Instruments, Cent. Dig. §§ 6-20, 63; Dec. Dig. § 2.*] Department 2. Appeal from Superior Court, City and County of San Francisco; Franklin J. Cole, Judge.

Action by Ida F. Shores and another against Milton Withers. From an order denying a new trial, defendant appeals. Affirmed.

Costello & Costello, of San Francisco, for appellant. Frank V. Bell, of San Francisco, for respondents.

MELVIN, J. Defendant appeals from an order denying his motion for a new trial.

them. Defendant acknowledged the making of the original deed of reconveyance, but denied the repayment of the indebtedness; and alleged that the deed was placed in the hands of Leander Shores with the express understanding that such act should not take effect as a delivery of the said deed and should not be placed of record until the sum of $400, with interest, should be repaid to Milton Withers. The trial court found in accordance with the allegations of the complaint, including the repayment of the money by Shores to Withers.

Appellant's arguments with reference to his belief that his motion should have been granted refer principally to alleged errors committed by the court in rejecting testimony tending to establish the conditional delivery of the deed to Shores. Respondents contend, however, that that part of the evidence was entirely immaterial; that the only points at issue are the existence of an interest of plaintiffs in the deed sought to be restored, the execution, acknowledgment, and delivery of the instrument to the predecessor in interest of the plaintiffs, and the destruction of the said deed. All of these matters are either admitted or not seriously controverted by appellant.

The position of respondents is entirely correct. There is only one point of difference between these litigants, and that is whether or not the $400, to secure which the original deed was given by Shores to Withers, had been repaid. That point is wholly immaterial here. The sole object of the proceeding is to restore the record. Other matters have no place in the controversy. If the plaintiffs are entitled to be placed in exactly the position which was occupied by their predecessor in interest, then the deed should be restored and delivered to them as ordered by the

There is no distinction to be made between

court. If the defendant has some defense to the apparent efficacy of the deed to pass title without qualification, he may assert it in a Such [1, 2] The action was one under the provi- proper action offensive or defensive. sions of section 3415 of the Civil Code to instruments should be restored even if they compel the defendants to re-execute and re- be voidable. In re Jones, 17 Cal. App. 328, The party having a defense acknowledge a certain deed destroyed by fire. 119 Pac. 670. The complaint alleges the conveyance to de- not apparent upon the face of the instrument fendant by Leander Shores of certain real may assert it precisely as he might have done property in Tulare county to secure the pay-if the document had not been burned. Foerst ment of $400; the subsequent repayment of v. Kelso, 163 Cal. 439, 125 Pac. 1054. that sum; the due execution, acknowledgment, and delivery of a deed by defendant to public records and private instruments in said Leander Shores; the fact that the last- this regard. The reason in one case is exnamed deed was not recorded; its destruc-actly the same as in the other. The owner of tion in the great fire at San Francisco, April 18, 1906; the death of Leander Shores and the distribution of his estate to the plaintiffs; the subsequent discovery by plaintiffs of the former existence and destruction of the deed; and the unsuccessful demand by them that defendant should replace the destroyed instrument with a similar deed to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

the destroyed instrument is entitled to be placed in a position in which he will not be compelled to establish his rights by secondary evidence.

The order from which the appeal is taken is affirmed.

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

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