(194 P.) in divorce proceedings, the right to such custody reverts to the father. Schammel v. Schammel, 105 Cal. 258, 38 Pac. 729; Matter of Allen's Estate, 162 Cal. 625, 124 Pac. 237; Bell v. Krauss, 169 Cal. 387, 146 Pac. 874. It is urged that the father in this instance has and adjudged an unfit custodian of his child. On the other hand, the mother has been shown to have abandoned the child. Under section 224 of the Civil Code neither of them perhaps could have interfered with the adoption of Kenneth by a third party, but nobody has manifested any desire to adopt him. Is he to be left a waif in the community with no right to parental care, because both his parents have been derelict in their duty toward him? who has been deprived of such custody the latter is absolved from liability, in the absence of any decree of court requiring contribution to such maintenance. It is true that it has been held that a father, deprived of the custody of his child in divorce proceedings, without requirement that he contribute been divorced for cruelty and intemperance to its support, is not liable to a third party furnishing such child with the necessaries of life (Selfridge v. Paxton, supra); but, under section 207, Civil Code, third persons seeking such recovery are limited in their right of action to the parent in charge of the minor. It is also held, in People v. Hartman, supra, that the defendant was not liable to prosecution, under section 270 of the Penal Code, upon a charge of willfully, unlawfully, and feloniously failing to furnish necessary food, clothing, shelter, or medical attendance for his infant child. In that case the infant had been given into the custody and control of the mother in a divorce action, without a require ment that the father contribute to its support, and no showing was made that its legal custodian was not abundantly able to care for it. In fact, the opinion states that "there is no evidence that the child failed to receive all necessary food, clothing, shelter, or medical attendance.'" The mother abandoned him 2 years after her divorce by leaving him in an orphan asylum, where he remained several years without provision for his support. She is presumptively dead, not having been heard from for more than 7 years. Code Civ. Proc. § 1963, subd. 26. The evidence on this point is not very full, but Kenneth testified that both he and his mother's other relatives had made persistent search and inquiry for her without avail. We find no authority for holding that, as [5, 6] It is clear that the boy was without between parent and child, the father is ab- means of support and had no legal guardian. solved from his legal duty to provide support Whatever the father's rights were to his son's to his minor child, who has no other source custody, his duty to provide for him was of maintenance, because, on account of his clear, both legally and morally. The commisown fault, he has been deprived of the cus- sioners were justified by the evidence on this tody of such child. Both a legal and moral point in concluding that the father had volobligation rests upon a father to support untarily resumed his parental relations and his minor children. And while, as between obligations and had taken the boy to live himself and third parties, that obligation may be shifted in proceedings of divorce or guardianship, and he may by misconduct forfeit his right to the custody of his child, it may be doubted if by such proceedings, to which he is not a party, a minor can be deprived of his natural right to turn to his father for maintenance, if the substituted source of supply fails. It has been held that such right to look to a father for maintenance cannot be taken from the infant by contract between the parents (Fernandez v. Aburrea, 183 Pac. 366), and it certainly would be a reproach upon the law if a father, by his own misconduct making him an unfit custodian of the child, could absolve himself from legal responsibility for its support. He, at least, may voluntarily resume his legal responsibility. [4] Conceding in this case, that the minor was not a dependent upon his father during the period he remained in the custody of his mother, there was nothing in the legal status of the parties at the time Kenneth joined his father in California to prevent the latter from voluntarily resuming responsibility for his son's support. It has been repeatedly held by this court that on the death of the mother, to whom the custody of a child has been given with him and assumed the burden of his maintenance, education, and support. This being the fact, the relations of parent and child had been restored. The condition of dependency existed at the time of the father's death as though it had never been disturbed, unless it was again suspended by the fact that the boy had taken up a fortuitous residence and employment outside the father's home, some 3 or 4 days before the latter's death. [7] In considering the relations of the parties at the time of the father's death, if we accept the fact that the duty of support and maintenance had been restored, we must treat the situation precisely as if this relation had never been disturbed. Would it, under the usual relationship between a father and his 15 year old son, be considered for a moment that the status of dependency had been destroyed or interrupted by the fact of such a casual outside employment as is shown here? In any event, the provisions of the Compensation Act are conclusive on this point. Section 14 of the Employers' Liability Act provides: "(a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: (2) A child or children under the age of eighteen years upor the parent with whom he or they are living | der allowing compensation to his guardian, at the time of the death of such parent or for R. L. Bocock, A. W. Dewey and others, legawhose maintenance such parent was legally lia- tees and devisees, and David Beeson, execuble at the time of death, there being no surtor and trustee, under the incompetent's viving dependent parent." will, appeal order reversed, with directions to modify allowance. Assuming that the first condition of this conclusive presumption is avoided by the temporary residence and employment of Kenneth with Mrs. Miles, we have left the alternative condition, that of a minor under 18 years of age, whose father at the time of his death was liable for the minor's maintenance, with no other dependent parent. We are of the opinion that the fact of the child being left without any other means of support, whether by abandonment by or death of his mother, restored him to his right of depend ency upon the father, and that, in any event, the Industrial Accident Commission was justified in reaching a conclusion favorable to the minor from the evidence showing a voluntary resumption of his parental obligations by the father. The only issue presented here is on the question of dependency, and the findings of the Commission expressly cover that issue. The award is affirmed. We concur: ANGELLOTTI, C. J.; LENNON, J.; WILBUR, J.; OLNEY, J.; SHAW, J.; LAWLOR, J. (184 Cal. 448) In re KELLEY'S ESTATE. (L. A. 6368.) (Supreme Court of California. Dec. 4, 1920.) 1. Insane persons 44 Guardian cannot dispose of property after ward's death. After the death of the ward, an incompetent, his guardian has no power to dispose of any property of the estate; but, until he is legally discharged, he is charged with the care and preservation of the ward's property. 2. Insane persons 41 Compensation of guardian must be confined to time during which he had custody of estate as such. Where guardian of an incompetent served as such, having custody and control of the in Lucien Gray and Leon F. Moss, both of Los Angeles, for appellants. E. B. Coil, of Los Angeles, for respondent. Dewey, W. W. Sloss, and Luzetta Sanders, LAWLOR, J. This is an appeal by A. W. legatees and devisees under the will of Thomas Jasper Kelley, deceased, and by David Beeson, executor and trustee under said will, Bocock, $1,650 for services rendered by him from a decree allowing respondent, R. L. as guardian of the person and estate of the said Kelley, incompetent. On On January 28, 1918, the respondent was Bocock, 6 mo. at $150.00, $900.00." Regarding this item, the respondent testi fied: "In my account I have paid myfirst 6 months of my services." self the allowance made, $900, being for the August 1, 1919, the court made a decree It is from the followsettling the account. ing portions of this decree that the present appeal is taken: competent's estate, for 7 months and 16 days from January 28, when he was appointed and qualified as guardian, to September 13, when he turned over all property of the estate to himself as special administrator, the ward having died, and on his first accounting received compensation for 6 months of his guardianship at the rate of $150 a month, any further compensation to which he may be entitled for his services as guardian must be confined to compensation for the remaining month and 16 days dur-pensation as such guardian to this time, nameing which he had custody of the estate. Department 1. "(4) The court further finds that heretofore it made an order allowing the said guardian the sum of $150 per month for services rendered as such guardian, and that such amount should continue until the further order of court; that such services have continued to the date of this order, and that he is entitled to such com ly, from the date of the last order, being for the month of August, 1918, amounting to the sum of $1,650, to be credited on said final ac Appeal from Superior Court, Los Angeles count. County; James C. Rives, Judge. In the matter of the estate of Thomas Jasper Kelley, an incompetent. From an or "(6) The said account should be and is here by settled and allowed; * that he pay to himself as such guardian the sum of $1,650 in full of services rendered." (194 P.) Appellants contend that the evidence does and has therefore refused to allow him comnot justify an allowance of $1,650 to re-pensation for any duties performed by him spondent for his services subsequent to Kel- as special administrator during that period. ley's death. This position is thus set forth Respondent argues from this that there is in their brief: no possibility that he will be allowed double compensation. But it is a sufficient answer to this contention to point out that the probate proceedings are not now before us and that there is nothing in the record to support the statement of respondent to which we have just referred. We are concerned here only with the question whether the court was justified in awarding respondent the sum of $1,650 for his services as guardian after July 28, 1918, and in view of the conclusion we have reached that question must be answered in the negative. "The court should not have allowed the guardian for services in excess of one month and one day, being the period from the time to which he had been paid in full up to the date of the death of the ward. The allowance should have been $155 and no more. Therefore Mr. Bocock, as guardian, was erroneously awarded the sum of $1,495 for alleged services subsequent to the death of the ward." [1] It is the well-established rule that after the death of the ward a guardian has no power to dispose of any property of the estate. Estate of Livermore, 132 Cal. 99, 64 Pac. 113, 84 Am. St. Rep. 37. Until he is legally discharged, however, he is charged with the care and preservation of the property of the ward. Downing v. Whitney, 46 App. Div. 307, 61 N. Y. Supp. 540; Schouler's Domestic Relations, 5th Ed., sec. 312; Spencer's Domestic Relations, § 786; 21 Cyc. 51. But in the case at bar, respondent, testifying in his own behalf, stated that on September 11, 1918, he had "duly transferred and turned over from himself The order is reversed, with directions to modify the allowance in accordance with the views herein expressed. We concur: SHAW, J.; OLNEY, J. (184 Cal. 437) In re CARSON'S ESTATE. WALKER et al. v. CARSON et al. (L. A. 6424.) funds of said decedent and said estate; and (Supreme Court of California. Dec. 4, 1920.) that the cash belonging to said decedent had been by him deposited in the Guaranty Trust. & Savings Bank in his name as special administrator." * * Wills 155(5)-Deception does not establish undue influence. Undue influence which invalidates a will involves as an essential element the subjugation of the mind of testatrix, so that an allegation that the will was procured by the fraudulent representations of the residuary legatee that he was the lawful husband of testatrix does not establish undue influence. Fraudulent misrepresentations by the re [2] Thus the evidence shows that between January 28, when respondent was appointed and qualified as guardian, and September 13, when he turned over all the property of the estate to himself as special administrator, a period of 7 months and 16 days elapsed, dur-2. Wills 160 (1⁄2)-Fraud of residuary lega. ing which he had the custody and control of tee held to affect only clauses benefiting him. said estate; that after the last-mentioned date respondent, while not yet legally dis-siduary legatee that he was the lawful husband charged as guardian, nevertheless had nothing to do in that capacity with the property, and that, according to his first and final account, he had been paid for the first 6 months of his guardianship at the rate of $150 per month. It follows necessarily, we think, that any further compensation to 3. Appeal and error 927 (3)—On reviewing which respondent may be entitled for his nonsuit, evidence must be given its utmost services as guardian must be confined to effect. compensation for the 1 month and 16 days during which he had the care and custody of the estate and for which he has not as yet been paid. It is urged by respondent that in fixing and determining the compensation to which he is entitled as special administrator the probate court has taken into consideration the fact that it had already allowed him compensation as guardian for the period from September 13, 1918, to August 1, 1919, of testatrix, whereby testatrix was induced to make him the residuary legatee and executor, do not invalidate the will as to other legatees, in the absence of any showing that the bequests to them were affected in any way by the misrepresentations. On reviewing an order of nonsuit, the evidence offered on behalf of appellant must be given its utmost effect. 4. Wills 153-Deception into unlawful marriage is fraud which avoids legacies thereby procured. One who deceived testatrix into marrying him by fraudulent misrepresentations that he was free to contract a lawful marriage was guilty of fraud, which avoided any bequests by testatrix, procured or induced by the fraud. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Wills 324 (3) Evidence held to raise jury question whether bequest was procured by fraudulent marriage. In proceedings to contest a will for the fraudulent representations of the residuary legatee to testatrix that he was free to marry her, evidence that the will was executed about a month after the marriage, and that testatrix died a year thereafter without ascertaining the truth, is sufficient to warrant an inference that the legacy to contestee was the result of the fraud by which the marriage was procured, though such inference might not be warranted if the marriage relation had continued for a long period of time, and it was error for the court to nonsuit contestants. mental state, are admissible, whether made in the presence of the adverse party or not, but such declarations are only competent to establish the mental state, not the facts stated in the declaration. 11. Wills 164(1)—Exclusion of false statements of legatee relied on as fraud held error. In proceedings to contest a will for fraudulent misrepresentations by the residuary legatee that he was free to marry when he married testatrix, it was error to exclude from evidence statements by the legatee to the testatrix before their marriage as to his previous matrimonial experiences, which were the fraudulent statements relied on by contestants. 6. Wills 166(12)-Fraud as procuring cause dence. 276-Contestee of will may be examined by contestant under statute. It is not necessary that parties contesting In proceedings to contest a will for frauda will on the ground it was procured by fraudulent misrepresentations by the residuary legaulent representations that the residuary legatee was free to marry testatrix prove by direct evidence that the bequest was induced by the belief of testatrix that the legatee was her legal husband, and that it would not have been made except for that belief, but that fact may be established by inference from circumstances. 7. Wills 285-Discretion in refusing amendment to petition contesting will must be reasonable. Though the granting of leave to file an amended petition for the contest of a will rests within the discretion of the trial court, that discretion must be reasonably exercised, so that the case may, so far as possible, be determined upon the real facts. 8. Wills 285-Refusal of amended petition for revocation of probate held error. tee that he was free to marry when he married testatrix, is was error to refuse to permit contestants to examine the legatee as to his previous marriages and as to his knowledge that he had a wife living when he married testatrix, in view of Code Civ. Proc. § 2055, adopted by St. 1917, p. 58, expressly permitting such an examination of an adverse party, which is only declaratory of an elementary rule of daily application in the trial of cases. 13. Wills 164(1)—Transfer of bank account to supposed husband held admissible to show marriage was cause of bequest. In proceedings to contest a will for the fraud of the residuary legatee in representing he was free to marry when he married testatrix, evidence that shortly after her marriage testatrix transferred her bank account into the joint names of herself and the residuary legatee Where the original petition for contest of was admissible, as tending to show that the bea will alleged fraud by the residuary legatee in quests to the legatee contained in the will, exrepresenting that he was free to marry testa-ecuted a month after the marriage, were made trix, whereas in fact he then had a wife liv- because of the belief of testatrix her marriage ing and undivorced, it was error for the trial was lawful. court, in the absence of any showing of inexcusable delay by contestants or surprise to contestee, to refuse leave to file an amended petition, alleging that at the time of his marriage to testatrix contestee had several wives living and undivorced. 9. Wills 165(1)-Declarations of testatrix out of legatee's presence admissible on issue of fraud to show state of mind. In proceedings to contest a will for fraudulent misrepresentations by the residuary legatee that he was free to marry testatrix, declarations by testatrix out of the presence of that legatee to the effect that she believed her marriage to him was legal are admissible, not as evidence of the facts therein stated, but to show her state of mind. 14. Wills 152-Mere mistake is not ground of contest. Mere mistake, which does not show a want of execution of a will or a want of testamentary intent as to a portion of it, is not ground of contest under Code Civ. Proc. § 1312, so that a mistaken belief by a testatrix, who knew the facts as to the previous matrimonial experiences of the man she married, that he was nevertheless her lawful husband, would not vitiate the will. Department 1. Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge. Petition by Sarah E. Walker and others 10. Evidence 268, 269(1)—Declarations ad- against J. Gamble Carson, individually and missible to show mental state. as executor of the will of Alpha O. Carson, deceased, and others, to contest the will. From a judgment denying revocation of the probate after the contestants were nonsuited at the trial, the contestants appeal. Re Whenever the intention, feeling, belief, or other mental state of a person at a particular time, including his bodily feeling, is material to an issue on trial, evidence of such person's declarations at the time, indicative of his then versed. (194 P.) Ford & Bodkin, of Los Angeles, for appel- [ have been the same, and the errors mentionlants. Horace S. Wilson, Daniel M. Hunsaker and Hunsaker & Britt and Le Roy M. Edwards, all of Los Angeles, and Joseph P. Sproul and Le Roy M. Edwards, both of Los Angeles, for respondents. ed were not prejudicial. The first and the most important point in the case, therefore, is, Was the evidence for the contestants, both that which they introduced and that which they sought to introduce, sufficient to justify a revocation of the probate of the will? [1] In discussing this point, it should be OLNEY, J. One Alpha O. Carson died, said at the outset that neither the contestleaving a duly executed will by which she ants' petition nor their evidence makes out a made bequests, aggregating some $35,000, to case of undue influence. The only substanvarious relatives, some 41 in number, and left | tial difference between the second count of the balance of her estate, something over the petition, that alleging undue influence, $100,000 in value, to “my husband J. Gamble and the third count, that alleging fraud, is Carson." She also nominated the last-named that in one it is alleged that the will was exas the executor of the will. The instrument ecuted under the undue influence of Carson, was duly probated, and thereafter and with- consisting in his deceit, whereby he induced in the statutory time certain of her heirs filed the testatrix to marry him and to assume and petitions, contesting its validity and asking maintain the relation of wife and husband that its probate be revoked. The residuary with him, and in the other it is alleged that legatee, Carson, and some of the other benefi- the will was executed through his fraud conciaries answered the petitions, and trial was sisting in the same deceit. There is no allehad before a jury upon the issues so made. gation of any subjugation of the mind or will At the trial, the contestants were nonsuited, of the testatrix to that of Carson, so that in and judgment was entered denying the revo- making her will she was not acting freely upcation of probate. From this judgment the on the facts as she believed them to be. contestants appeal. Such subjugation of the mind of the testatrix was an essential element of a case of undue influence, and had to be both alleged and proved. It was not alleged, as we have said, nor was there any evidence whatever introduced or offered tending to prove it. It is alleged that the testatrix and Carson lived in closest intimacy and association until her death, but there is no allegation that Carson abused the confidential relation which thus existed. The wrong alleged is the deceit whereby that relation was brought about and came to exist, and not any misuse of the relation as it did exist. The distinction be fraud is discussed at length in Estate of Ricks, 160 Cal. 467, beginning at page 480, 117 Pac. 539, and it is not necessary to repeat that discussion here. Suffice it to say that it is to the effect mentioned, that in or The grounds of contest, as alleged, were three: First, a want of due execution; sec ond, undue influence upon the testatrix, alleged to have been exerted by Carson; and, third, fraud upon her, alleged to have been likewise practiced by him. The first ground was abandoned, and may be dismissed from consideration. The substance of both the second and third grounds was that, while Carson had gone through a marriage ceremony with the testatrix a year before her death, and she believed then and always thereafter that he was her husband, and made her will in that belief, yet he was not such legally, between a case of undue influence and one of cause he was already married to a woman who was still living and from whom he had not been divorced. It is also alleged that Carson knew he was not free to marry, and yet represented that he was, and that the testatrix's belief was induced by these false rep-der that there be undue influence there must resentations. It is also alleged that solely because of this belief she made the will in question, leaving the bulk of her estate to him. Shortly before the matter came on for trial the contestants offered an amended petition for revocation, and asked for leave to file it. Their application was denied, and the contestants complain of this ruling as error. When it came to the trial, the contestants were also prevented in very large measure from proving their case by rulings of the court excluding their evidence, and of these rulings they also complain. We think the rulings were in truth wrong, but it is apparent that if both the evidence introduced by the contestants and that which they sought to introduce, and were not permitted to, would together not have made out a case justifying the revocation of probate, the result would be a subjugation of the will of one to that of another. [2] The present case is, then, one of fraud only. Being such, there is another point of which we would speak before taking up the sufficiency of the evidence. It seems to have been assumed that in case the contestants showed that the will was induced by the alleged fraud of Carson, the entire will would fail. We do not so understand. There is nothing, either in the allegations of the contestants' petition or in their evidence, which would tend to show that any of the other beneficiaries was a party to Carson's alleged fraud, or that his fraud had any effect upon the testatrix's testamentary intentions other than to induce her to make him her residuary legatee and to appoint him as her executor. So far as the other beneficiaries are concern |