bound to elect where the will clearly shows | $630,321.67. The real property situate outan intention to make the gift to her stand in side of the city of Los Angeles, covered by lieu of her interest in the community property. [Ed. Note.-For other cases, see Wills, Cent. paragraph second of the will, was appraised Dig. 88 2018-2033; Dec. Dig. § 782.*1 at $179,928.50. All of this was community 4. WILLS (8 740*)—ESTOPPEL BY AGREEMENT. property. There was other community prop An agreement, between testator's widow erty consisting principally of a note secured and the beneficiary, made for a consideration by mortgage and two bonds, said note and in compromise of a disagreement as to the rights of the parties under the will, by which bonds, together, being of the appraised value the beneficiary waived her objection to the of $16,000, also two parcels of land in the widow's claim to take under the will, as well city of Los Angeles, appraised at $54,000. as one-half of the community property, would The separate property of the decedent conestop the beneficiary from denying such claim sisted of land in the city of Los Angeles, apby the widow. praised at $380,000. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1888-1895; Dec. Dig. § 740.*]' Department 1. Appeal from Superior Court, Los Angeles County; Frank G. Finlayson, Judge. In the matter of the Estate of Charles Prager, deceased. From a decree of settlement and distribution, Fannie Prager Cohn, a devisee, appeals. Affirmed. Trask, Norton & Brown, of Los Angeles, for appellant. O'Melveny, Stevens & Milliken and Oscar Lawler, all of Los Angeles, for respondent. SLOSS, J. Fannie Prager Cohn, one of the devisees under the will of Charles Prager, deceased, appeals from a decree of settlement of final account and of distribution. The will, so far as its terms are material here, provides as follows: "Second. I direct that all of the real property owned by me at the time of my death, situate without the corporate limits of the city of Los Angeles, be distributed to the following named persons, share and share alike, to wit: My brother, Morris Prager; my nephews Lesser, Michael and Harry Prager; and my nieces, Eva and Bella Prager, and Regina Feintuch, Fannie Cohn, Celia Cohn, and Rosa Eppstein, provided, however, that should any of said persons in this paragraph named be dead at the time of my decease, then and in that event I direct that the share to which said person would be entitled, if living, be distributed to his or her heirs at law by right of representation." The third paragraph gives to one of the nephews certain jewelry; the fourth bequeathed $1,000 to Helen Jane Lawler. Then follows this provision: "All the rest, residue and remainder of my estate, of every kind and character, including all real property owned by me within the corporate limits of the city of Los Angeles, and mortgages, notes, bonds and other personal property of every description, I give, devise and bequeath unto my wife, Mary J. Prager, absolutely." The widow and Oscar Lawler were named as executrix and executor. By a codicil the testator bequeathed three legacies of $15,000 each, but made no other change in the disposition of his property. Charles Prager died on the 14th day of September, 1911. The total value of the estate, as shown by the appraisement, was Very shortly after the testator's death, the widow, Mary J. Prager, through her attorney and coexecutor, Mr. Lawler, informed the devisees named in the second paragraph that she claimed the right to succeed to onehalf of the community property, in addition to taking what was given her by the will. Most of the said devisees at once conceded ble period during the administration, two of the validity of this claim. For a considera Celia Prager Cohn, opposed the position of them, Mrs. Fannie Prager Cohn and Mrs. the widow, contending that she was put to her election to take under the will or as survivor of the community. Mrs. Celia Cohn finally abandoned her opposition, and Mrs. Fannie Cohn, the appellant, remains as the only one of the devisees now contesting the widow's claim. By a decree of partial distribution, the real property outside the city of Los Angeles was distributed as follows: One-half thereof to Mary J. Prager, as surviving widow of the decedent; and the other one-half in equal shares of an undivided one-twentieth each to the ten persons named in paragraph second, or their assigns. Thereafter, the specific and pecuniary legacies having been satisfied, the court made the decree here appealed from, by which the residue of the estate (with the exception of one item of property not ready for distribution) was distributed The claim of the appellant, to the widow. Fannie Cohn, is that the widow, by taking under the decree of partial distribution onehalf of the community property not devised to her, had manifested her election to forego the benefits given her by the will. [1] Reading the will by itself or in the light of the circumstances shown by the record, we find no ground for holding that the widow was called upon to surrender either her interest in the community property or the The rules devises and bequests given her. of law governing the question of election in cases like the present have been declared in numerous decisions of this court. [2] The testator is presumed to have made his will with knowledge that his power of testamentary disposition did not extend to the surviving wife's interest in the community property. The presumption is further that he did not intend to devise or bequeath tention could not be given effect if one-half of such property were withdrawn from the operation of the will. This case presents no such features. On the contrary, it is in ev the one-half of the community property | entire community property, and that his inwhich, upon his death, would vest in his widow irrespective of any attempt that he might make to dispose of it by will. In the absence of anything in the instrument to indicate a contrary intent, the testamentary dis-ery material respect like a number of those, positions must accordingly be understood as intended to cover only the property which the testator had the right to devise or bequeath; i. e., his separate property and an undivided half of the community property. above cited, in which this court concluded that no duty of election arose. But, in any event, the decree must be sus tained upon another ground. In addition to her claim that, under the will, she was en[3] The mere fact that provision, however titled to both her community interest and the liberal, is made in the will for the wife is residuary legacy and devise, the widow renot enough to justify the conclusion that lied upon, and set up in her petition for dissuch provision was intended to be in lieu of tribution, an agreement made between her her interest as survivor of the community. and the beneficiaries under paragraph second Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125;| whereby, for à good consideration, the latter Estate of Silvey, 42 Cal. 211; King v. La- agreed that she should take under the will grange, 50 Cal. 328; Estate of Frey, 52 Cal. | as well as in her capacity as survivor of the 658; Estate of Gwin, 77 Cal. 313, 19 Pac. community. The court found in favor of 527; Estate of Gilmore, 81 Cal. 240, 22 Pac. 655; Estate of Smith, 108 Cal. 115, 40 Pac. 1037; Estate of Wickersham, 138 Cal. 355, 70 Pac. 1076, 71 Pac. 437; Estate of Vogt, 154 Cal. 508, 98 Pac. 265. The widow's obligation to elect arises only where the testator has, by the terms of the will, clearly manifested the intention to make the testamentary gift to her stand in lieu of her interest in the community property. The provision may be "declared in terms to be given in lieu of" the right as survivor of the community (Morrison v. Bowman, 29 Cal. 337), or the language of the will may be such as to show clearly an intent to dispose of the whole of the community property in such manner that "the widow cannot take the moiety given her by law without, to that extent, defeating the plain intent of the testator" (Estate of Vogt, supra; Estate of Stewart, 74 Cal. 98, 15 Pac. 445; Estate of Smith, supra). these allegations; its findings being in brief as follows: In order to settle and compromise the conflicting claims of the widow and said Fannie Prager Cohn, it was agreed by the widow and all of the beneficiaries under paragraph second that said Fannie Prager Cohn would admit the right of the widow to take all of the property of the estate claimed by her; that the parties to the agreement would all join in a petition for partial distribution of the property outside of the city of Los Angeles, in the proportions of onehalf to the widow and an undivided onetwentieth to each of said beneficiaries or his or her assigns; that all of the parties would execute to Herman Cohn, husband of Celia Cohn, an option to purchase said property for $185,250, such sum, when paid, to be divided among the parties in the proportions named in the petition for distribution to be filed. As one of the considerations passing to Fannie Cohn for making said compromise The will before us does not declare that and settlement, it was agreed that Herman the gifts to the widow shall be in lieu of her Cohn would pay to said Fannie a share of community right. Neither do its provisions the profit which he might realize on said opshow an intention which would be frustrated tion; such share to be $16,750, if such profby permitting the widow to take both her moi- it should amount to $64,500. A further conety of the community property and the resi- sideration was the assignment by the widow due given to her. The property given to the to Celia and Fannie Cohn for $5,000 and inwidow included both separate and community terest of Lesser Prager's interest in the esestate. Some of the community property (1. tate; such interest having been theretofore e., the land outside the city of Los Angeles) purchased by the widow. This agreement was devised to the persons named in para- was carried out in all its parts. The parties praph second. There is nothing to indicate petitioned for partial distribution, which was that the latter provision was intended to op- granted as already stated. The parties to erate as a gift of more than the share which the settlement united in an option to Herman was subject to the decedent's testamentary Cohn, authorizing him to purchase the propdisposition. Applying the presumptions of erty so distributed at any time within six which mention has been made, the will dis- months for $185,250. An assignment of the closes a simple and consistent scheme, which interest of Lesser Prager was executed by may be carried out in every respect without the widow to Herman and Nathan Cohn, desaffecting the widow's right to claim her law-ignated by their respective wives to receive ful interest in the community property. In every case in which the widow has been held to be put to her election, the will contained language which, when read in the light of the circumstances, showed plainly that the testator was undertaking to dispose of the the same, and deposited in escrow with instructions to deliver upon payment of the agreed sum of $5,000 and interest. It was subsequently paid for and delivered. Herman Cohn sold his option at a profit of $64,500 of which Fannie Cohn received $10,750. She also received moneys accruing on ac-appellate court when substantial evidence exists count of the interest of Lesser Prager, as- to support the finding. signed as aforesaid, as well as her share of the sum of $185,250 paid as the purchase price of the lands outside of the city of Los Angeles. [Ed. Note. For other cases, see Appeal and Error Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*] Appeal from Superior Court, City and County of San Francisco; Clarence A. Raker, Judge. [4] Whatever may have been the original legal rights of the widow, it is too plain for discussion that this settlement and comproAction by W. B. McGerry & Co. against Patrizio Marsicano. mise, whereby the appellant, in consideration From a judgment for of the option and transfer, agreed to waive plaintiff and from an order denying defendher objection to the widow's claims, operat-ant's motion for a new trial, he appeals. Afed, when fully executed, to estop and preclude said appellant from claiming that the John J. Roche, of San Francisco, for apwidow was not entitled to succeed to one-pellant. Sullivan & Sullivan and Theo. J. firmed. KERRIGAN, J. This action was brought to recover the sum of $8,865 for services performed by the plaintiff corporation as broker in negotiating a lease of real property in San Francisco belonging to defendant. Judgment went for plaintiff for the full amount demanded in the complaint. The appeal is from the judgment and from an order denying defendant's motion for a new trial. half of the community property and to take Roche, all of San Francisco, for respondent. as well the residue of the estate. And such was the conclusion of law drawn by the court from the facts above recited. The appellant does not question the propriety of this conclusion; her only contention in this regard being that the facts found are not supported by the evidence. The contention is without merit. The making of the agreement of compromise, so far as it was not covered by documentary evidence, was fully set forth in the testimony of Mr. Lawler, who was corroborated on essential points by several of the beneficiaries, as well as by Herman and Nathan Cohn; the latter being the husband and authorized agent of the appellant. There was, indeed, little, if any, substantial contradiction of this testimony, but, if there had been, the determination of the trial court on conflicting evidence is, of course, not open to attack here. The execution of all the terms of such agreement was likewise established by clear proof. The decree is affirmed. The lease negotiated by plaintiff was for a period of twenty-five years, and by its terms the rent for the first five years was to be $1,500 per month, or $18,000 a year; for the second period of five years the monthly rent was to be $1,750, aggregating for that period $105,000; for the third period of five years the monthly rental was $2,000, making for that period of time the sum of $120,000; for the remaining ten years of the lease the monthly rental was $2,200, amounting in that time to $264,000. The total of the rent thus reserved to the defendant under the lease amounted to the sum of $579,000. In addi We concur: ANGELLOTTI, J.; SHAW, J. tion to the obligation to pay this amount, the (23 Cal. A. 55) W. B. McGERRY & CO. v. MARSICANO. (Civ. 1,274.) lessee was to erect a building upon the leased land which, at the expiration of the term, was to become the property of the lessor. Furthermore, all taxes and other charges against the property were to be paid by the lessee. Plaintiff's claim for compensation for (District Court of Appeal, First District, Cali- its services in negotiating said lease was fornia. Oct. 21, 1913.) - 1. BROKERS (§ 85*)-COMMISSIONS CUSTOMARY RATE-RESOLUTION OF BROKERS' BOARD. In an action for broker's commissions in negotiating a long lease of real property, evidence that shortly after 1906 the real estate board of brokers in San Francisco, where the services were performed, established a scale of commissions for negotiating leases of real property, and that the rate fixed was 22 per cent. of the first year's rental and 12 per cent. on the rental for the remainder of the term, was admissible as showing a customary rate; there being other evidence that such charge was reasonable, usual, and customary. [Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 106-115; Dec. Dig. § 85.*] 2. APPEAL AND ERROR (§ 1010*) QUESTIONS OF FACT. Power to determine questions of fact is vested exclusively in the trial court in civil cases, and its determination is controlling on the based upon a percentage of 21⁄2 on the first year's rental, amounting to the sum of $450, and 12 per cent. on the rental for the remainder of the term, amounting to $8,415, making a total of $8,865. This amount was claimed by the plaintiff to be the reasonable value of the services rendered by it for the benefit of the defendant. It was claimed by the defendant at the trial as it is now claimed here, that when he employed the plaintiff to effect the lease it was agreed that no commission was to be paid by him, but that the plaintiff should look to the lessee for compensation for its services. Plaintiff denied that any such agreement existed, and the evidence produced at the trial pro and con upon this question made a substantial conflict, the determination of which by the trial court, counsel for defendant concedes, is binding upon this tribunal under a well-es- | plaintiff. From all the testimony presented tablished rule. [1] It is contended, however, by defendant that the evidence was entirely insufficient to justify the decision of the court in allowing the plaintiff more than $1,500, the amount of the first month's rent under the lease, which the president of the plaintiff corporation admitted it was willing to take rather than have a lawsuit and the attendant expense of the employment of attorneys. the trial court found the sum sued for to be a reasonable charge, and we are constrained to say that the record presents sufficient evidence to support this conclusion. [2] The power to determine questions of fact is vested exclusively in the trial court in civil cases, and its determination is controlling when substantial evidence exists to support its finding. Reay v. Butler, 95 Cal. 206, 30 Pac. 208. The judgment and order are affirmed. We concur: LENNON, P. J.; RICH (23 Cal. A. 67) NICHOLS v. DAVIS et al. (Civ. 1167.) (District Court of Appeal, Third District, California. Oct. 21, 1913.) 1. ATTACHMENT (§ 122*)-AFFIDAVIT—AMENDMENT BY ATTORNEY. Since Code Civ. Proc. § 538, provides that an attachment affidavit may be made by or on behalf of the plaintiff, where it is necessary to make an amendment thereto in order to prevent a dismissal of the attachment on motion, such amendment may be made by plaintiff's attorney on plaintiff's behalf.. Cent. Dig. 88 323-337; Dec. Dig. § 122.*] Code Civ. Proc. § 558, authorizing an amendment of an attachment affidavit to prevent the sustaining of a motion to discharge the writ, authorizes the supplying by amendment only of that which has been omitted from the original affidavit by reason of inadvertence or oversight, provided the original affidavit is not absolutely lacking in a substantive particular so as to make it so absolutely void as not to be amendable. The evidence shows that shortly after the earthquake and fire of 1906 the real estate board of brokers in San Francisco passed a resolution, attempting to establish a scale of commissions to be charged by brokers for negotiating leases of real property; and the president of the plaintiff acknowledged, when his deposition was taken prior to the trial, that the plaintiff's charge in this case was based upon that resolution. Defendant insists that a customary rate cannot be shown in this manner, and cites the case of Laver v. Hotaling, 115 Cal. 613, 47 Pac. 593, where a charge made by an architect upon such a basis was held to be unwarranted as to those who had not made the resolution a part of their contract; and that no one is held to make it a part of his contract unless charged with knowledge of it. In that case the judgment was upheld upon the ground that there was evidence that the customary and reasonable rate of charge was the same as the one established by the resolution of the architects' association. The very character of evidence held to be necessary in the Laver Case was produced by the plaintiff in this case. Four witnesses, real estate brokers, including the president of the plaintiff (the person who negotiated the lease), testified that the usual and customary charge and a reasonable charge in San Francisco for services such as those rendered by plaintiff, at the time of their rendition, was 22 per cent. on the first year's rental and 11⁄2 per cent. on the rental for the remainder of the term. Defendant's counsel admits that, standing alone, the direct evidence of these witnesses would support the finding of the court as to the value of the services rendered; but claims that, taken in connection with their cross-examination, the basis of their estimates of value cannot be upheld; that such estimates are fallacious and cannot be relied upon because based upon grounds illusory that defendants were indebted to plaintiff in the An original attachment affidavit averred and unsubstantial. In this he is partly sup- sum of $10,000 over and above the legal setported by the record as to some of the wit-off and counterclaim on seven express contracts nesses; but the testimony of witness McGerry is positive as to the charge being reasonable, usual, and customary, and this witness was not cross-examined upon this point, and his testimony is nowhere in the record at all impaired. Besides this, the defendant had an opportunity of presenting witnesses to prove that the charge was not reasonable nor customary, but he failed to produce a single witness to disprove this claim of the [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 323-337; Dec. Dig. § 122.*] 3. ATTACHMENT (§ 122*)-AFFIDAVIT-AMEND MENT. original attachment affidavit recited "that said In an action against two defendants, an attachment is not sought and the said action is not prosecuted to hinder, delay, or defraud any creditors of the said defendant." Held, that an "defendant" to the plural and adding "or either amendment of the clause changing the word of them" was allowable. [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 323-337; Dec. Dig. § 122.*] 4. ATTACHMENT (§ 122*)—AFFIDAVIT AMEND. MENT. for the direct payment of money, with interest at 7 per cent. and payable in California, and that payment of the same had not been secured. A motion to quash the writ having been made, plaintiff filed an amended affidavit which deand referred to the verified complaint on file scribed the express contracts as seven notes for a more particular description thereof, alleging that the contracts were made and were payable within the state, that payment of the same and each of them and each part of them had not been secured, etc., that plaintiff was absent from the county where the action was being For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tried and would not return for four days, and | sued upon herein are in equity a part." How that affiant made the affidavit for and at plain- this equity arises is not shown. tiff's direction and was familiar with the facts. Held, that the original affidavit was not so defective as to be a nullity, and that the amendment was properly filed as merely extending and particularizing what was attempted to be stated in the original. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 323-337; Dec. Dig. § 122.*] 5. ATTACHMENT (8 109*)-AFFIDAVIT NEGA TIVE PREGNANT. The statute authorizing attachment requires that the affidavit allege that the contract sued on was made payable in California and that payment of the same has not been secured by any mortgage, etc. Action having been brought on several notes, an attachment affidavit recited that payment of the notes and that each part of them had not been secured, etc. Held, that such allegation was not objectionable as a negative pregnant but sufficiently alleged that none of the contracts were secured. [Ed. Note. For other cases, see Attachment, Cent. Dig. § 240; Dec. Dig. § 109.*] Appeal, from Superior Court, Alameda County; Everett J. Brown, Judge. Action by Elmer E. Nichols against J. O. Davis and another. From an order denying defendants' motion to dismiss certain writs of attachment, they appeal. Affirmed. J. E. Pemberton, of San Francisco, Keyes & Martin, of Berkeley, and J. O. Davis, for appellants. J. A. Elston, of Berkeley, and Geo. Clark, of San Francisco, for respondent. CHIPMAN, P. J. Defendants appeal from the order denying their motion to dismiss certain writs of attachment upon several grounds, of which only the following are urged in defendants' opening brief: That the affidavits used at the hearing "show affirmatively that there was security in the shape of a lien on personal property"; that the affidavit originally filed was so defective as not to admit of amendment under section 558 of the Code of Civil Procedure, as amended in 1909 (Stats. 1909, p. 253); that the amended affidavit is fatally uncertain. Witness Naylor, vice president of the bank, testified that the Keystone Construction Company "was never in any way connected with the transactions of the loaning of the money by said bank to J. O. Davis"; that "it was never at any time intended by the parties to the said assignments (of the Keystone Company contracts) that the same should be deemed security for the payment of the promissory notes herein before mentioned; that it was at all times understood between the said bank and the said company that the assignments should constitute merely authorities to collect such moneys as might be collected by the said bank from said city and county of San Francisco." Other statements are made by the deponent further explaining the relation of the parties, all of which controvert the claim made by defendants that these Keystone Construction Company assignments were intended as security for the notes in suit. 2. It is contended that the affidavit filed on the issuing of the writs was "a worthless affidavit, one which was in legal effect only blank paper," and would not, under section 558, Code of Civil Procedure, "Justify the filing of a new affidavit by another affiant in such a case as this," citing O'Connell v. Walker, 12 Cal. App. 694, 108 Pac. 668. In that case the objection arose out of the statement as to security which was in the alternative. The indebtedness sued upon accrued and the action was commenced, as we understand the case, before the amendment of section 558 in 1909, and besides the question of the right to amend did not arise in the case. The only cases we have found decided on appeal referring to the amendment of the statute are Jensen v. Dorr, 157 Cal. 437, 441, 108 Pac. 320, and Fairbanks, Morse & Co. v. Getchell, 13 Cal. App. 458, 110 Pac. 331. In the latter case the notary who executed the jurat resided in and was commissioned as a notary of Kern county. The affiant was in the city of Los Angeles, and the notary called him up over the telephone and took his statement and admitted the oath while the affiant was in Los Angeles. The court, for reasons given, said: "Inasmuch, however, as the act of Kaye (the notary) in administering the oath was a nullity and the purported affidavit void, it follows that there was nothing to amend. The authorized amendment of the affiant contemplates the existence of an affidavit. There could be no irregularity in that which had no existence." 1. Plaintiff is the assignee of certain promissory notes assigned to him by the payee, the First National Bank of Berkeley. The pleadings in the action are not in the record, but we infer from what elsewhere appears that the notes in question were signed by both defendants. In his affidavit, defendant J. O. Davis deposed that the "said notes are in equity the obligations of the said Keystone Construction Company, and that plaintiff and the said First National Bank of Berkeley at the time of the filing of suit on said notes had full notice of such facts"; that, at the time of the execution of said notes, the said company was engaged in the performance of certain contracts with the city and county of [1] Upon the point that in the present case San Francisco, involving a large amount of the amended affidavit was improperly made money, stating the particulars; and that said by the plaintiff's attorney, the case cited company, at the request of said bank, as- shows that an affidavit may be made by or signed to it the said contracts as security on behalf of the plaintiff. Code Civ. Proc. for the promissory notes of said company § 538. We see no reason why an amended and other of its debts "which debts the notes affidavit also may not be made on behalf of |