the estate for the purpose of partial distribution (and nieces joining in the agreement $3,000 either as against the other heirs or creditors. each. The amounts so agreed to be paid 4. EXECUTORS AND ADMINISTRATORS 314(3) aggregate $40,000. "All said sums," it is -DISTRIBUTION-AGREEMENT-ESTOPPEL. Where several heirs agreed to an early distribution on a stipulated basis, and further agreed to give aid to prevent the overthrowing of the will, their petitioning for distribution immediately held not to depend on the admission of the will to probate, and they were not estopped to ask distribution by their agreement. 5. EXECUTORS AND ADMINISTRATORS DISTRIBUTION-BONDS-TIME. Under specific provisions of Code Civ. Proc. § 1661, where the time for filing claims had expired when a decree for distribution was made, it was unnecessary to require the distributee to give a bond. 299 Department 1. Appeal from Superior Court, City and County of San Francisco; Jas. M. Troutt, Judge. Proceedings in the matter of the estate of William Hinkel, deceased, wherein John Hinkel and another petitioned for partial distribution, and from the decrees granting such petitions, Elizabeth Hinkel, as executrix, appeals. Affirmed. John C. Quinlan, of San Francisco, for appellant. A. L. Weil, A. Caminetti, Jr., Stafford & Stafford, and W. P. Caubu, all of San Francisco, for respondents. SLOSS, J. Elizabeth Hinkel, as executrix of the last will of William Hinkel, deceased, appeals from two decrees of partial distribution made in favor of John Hinkel and Edgar W. Hinkel, respectively. provided, "shall be paid to the parties as above indicated, whether said will shall be sustained or revoked by order of court, as soon as distribution can be had in the estate of William Hinkel, deceased, and out of the first moneys distributed therefrom." Elizabeth Hinkel and Oliver L. Jones grant to said parties the right to compel distribution to John Hinkel, as trustee for such other parties, of the sums to be paid out of the share or legacy to which Elizabeth Hinkel and Jones may be entitled, either as heirs at law of William Hinkel, deceased, or as beneficiaries under his will. The parties of the first part assign to John Hinkel, as security for the performance of the agreement, all of their interest in the estate. It is also provided that, if any property claimed to belong to the estate shall be determined to be the separate property of Elizabeth Hinkel, such separate property is also transferred to John Hinkel as security for the performance of the agreement. The parties of the second part agree to co-operate in good faith with the parties of the first part in sustaining the validity of the paper filed as the last will and testament of William Hinkel, deceased, "and to that end will, upon request of the parties of the first part, participate in and join in a petition to the court to vacate the judgment and grant a new trial in the proOn November 4, 1914, William Hinkel's ceedings for the revocation of probate of will was admitted to probate, and Elizabeth said will." On March 27, 1916, Elizabeth Hinkel and Oliver L. Jones were appointed Hinkel, as party of the first part, entered executrix and executor. The will bequeath- into an agreement with O. B. Martin, guarded to each of seven nephews and nieces, chil-ian of the person and estate of Edgar W. dren of the decedent's brother Charles, $3,- Hinkel, as party of the second part. This 000; to a niece and nephew, children of a sis- agreement, after reciting the admission to ter, $3,000 each; to the widow, Elizabeth probate of the will, the institution of the Hinkel (who prosecutes this appeal as execu- proceeding for revocation of probate, the trix), the decedent bequeathed $100,000, in judgment revoking the probate, and the conlieu of her community interest. The other sent of the contestants to the granting of a provisions of the will are not material here. motion for new trial, declares that the party A proceeding for revocation of probate of the second part transfers to the party of was instituted by John Hinkel, a brother the first part all his right, title, and interest of William Hinkel, and two sisters of said in the estate of William Hinkel. Elizabeth decedent. In June, 1915, after a trial of the Hinkel agrees to pay to Edgar W. Hinkel contest, probate of the will was revoked. On the sum of $4,250; "that said sum of $4,250 July 2, 1915, the three contestants, together shall be paid to said party of the second with eight of the nieces and nephews named part whether said will shall be sustained in the will as legatees in the sum of $3,000 or revoked by order of said court, as soon each, entered into a written compromise as distribution can be had in the estate of agreement with Elizabeth Hinkel and Oliver William Hinkel, deceased, and out of the L. Jones. The instrument provided, in effect first moneys distributed therefrom, after that the said contestants and legatees (par- the payment of the moneys agreed to be ties of the second part in said writing) trans- paid to John Hinkel as trustee under the fer all of their rights and interests in the agreement dated July 2, 1915." The party estate to Elizabeth Hinkel and Oliver L. of the second part consents to the dismissal Jones (designated as parties of the first part); of the will contest, and agrees to co-operate that Elizabeth Hinkel and Oliver L. Jones in good faith with the party of the first part agree to pay to John Hinkel $6,000, to the in sustaining the validity of the paper filed two sisters $5,000 each, and to the nephews as the last will of William Hinkel, deceased, and to that end agrees, on request of the party of the first part, to participate and join in a petition to grant a new trial in the matter of the revocation of probate. It is further agreed that the party of the second part may apply to the court for an order or decree distributing to him the sum of $4,250. After the making of these agreements a new trial was, by consent of the parties, granted in the proceeding to revoke probate, the contest was dismissed, and Elizabeth Hinkel and Oliver L. Jones were reappointed executrix and executor. John Hinkel petitioned for the partial distribution to him of the $40,000 which, under the first agreement, he was to receive as trustee for the various parties to the compromise, and O. B. Martin, as guardian of Edgar W. Hinkel, filed a like petition for the distribution of $4,250 to him. Both petitions were granted, and Elizabeth Hinkel, as executrix of the will, appeals from the decrees thus made. Jones did not join in the appeal. It is contended by one of the respondents that, in the absence of proof of the conditions defined in section 1355 of the Code of Civil Procedure, one of two executors cannot alone take an appeal from an order affecting both in their representative character. We do not find it necessary to pass on this point, as we have reached the conclusion that the decrees appealed from should be affirmed on the merits. [1] One of the points made by the appellant is that a contest of the will had been instituted by Robert Hinkel, a minor, and that this contest was still pending when the decrees of partial distribution were made. But the fact that a will is still open to contest at the suit of a minor or a nonresident does not necessarily preclude a distribution. Estate of Pritchett, 52 Cal. 94. The agreements provide that the amounts therein specified shall be paid whether the will be sustained or overthrown. In either event the interest of the contracting parties will be sufficient to permit such amounts to be paid without impairing the ability of Robert Hinkel to receive his share, if he should be successful in his contest. [2] The condition of the estate, as shown by the record, was not such as to preclude a partial distribution. The appraised value of the estate was over $290,000, and it appeared that there had been an increase of $25,000 over the value as fixed by the appraisement. Suits and claims presented against the estate up to the time of the filing of the petitions aggregated about $71,000. While the time for presenting claims had not expired when the petitions were filed, it had run out when the decrees of distribution were made. Section 1661 of the Code of Civil Procedure provides for a partial distribution where "the estate is but little debted is to be determined, not by the amount of the debts, viewed absolutely, but by their relation to the value of the estate. In re Crocker, 105 Cal. 368, 38 Pac. 954. An estate is little indebted when the amount of the estate over and above the debts, is sufficient to allow the distribution to be made without danger to the rights of creditors. [3] The inventory contains the statement that the executors are unable to state whether the property "is community or separate property of Elizabeth Hinkel, or partly community and partly separate property of Elizabeth Hinkel." Any question in this regard is one which concerns Elizabeth Hinkel in her individual right, rather than as executrix. As an individual she would be in no position to contest the distribution, since, by the compromise agreement, she transferred any part of the estate that might be her separate property as security for the performance of the agreement. Furthermore, both agreements plainly contemplated that the sums agreed to be paid were to be distributed out of the estate of William Hinkel. Under these conditions Elizabeth Hinkel cannot now assert, either as executrix or as an individual, that the property inventoried by her and her coexecutor was not a part o the estate for the purpose of this partial distribution. On like considerations, she would be estopped, as against creditors who might be affected by the distribution, to claim, as her separate property, the funds necessary to the payment of their demands. [4] The fact that in both contracts the parties contracting with Mrs. Hinkel and Jones agreed that they would co-operate in sustaining the will affords no answer to a demand by them for distribution. There is no claim that the evidence shows any past failure on the part of any of them, and the continuance of such co-operation, up to the completion of the final settlement of the estate, is not made a condition precedent to their right to receive the money. On the contrary, each agreement declares plainly that the moneys agreed to be paid were to be distributed as soon as distribution could be had. Nor was it a condition to the right to receive the money by order of distribution that the will should be upheld. It is true that a party interested in an estate may by agreement estop himself from asking for a partial distribution. Estate of Glenn, 153 Cal. 77, 94 Pac. 230; Estate of Colton, 164 Cal. 1, 127 Pac. 643. But the agreements in this case, looking as they did to the earliest possible distribution, irrespective of the final outcome of the efforts to have the will admitted to probate, furnish no support for a claim of estoppel against the respondents here. [5] In the order making distribution to Edgar W. Hinkel the court did not require stated, the time for filing claims had expir- quarter section corner, being the northwest ed when the decree was made, and under the provision of section 1661 of the Code of Civil Procedure the court was therefore authorized to dispense with the bond. The agreement with Edgar W. Hinkel provided, as we have above stated, that the sum to be paid thereunder should be paid only after the payment of the moneys agreed to be paid to John Hinkel as trustee. But the court found that such trustee, for whose benefit and protection this clause was obviously inserted, had expressly waived any objection to the granting of distribution to Edgar W. Hinkel, and had consented thereto. There is, therefore, no substantial ground of objection to the two distributions being ordered at the same time. The decrees appealed from are affirmed. SPIERS v. SPIERS et al. (S. F. 7282.) (Supreme Court of California. Nov. 22, 1917. Rehearing Denied Dec. 20, 1917.) NEW TRIAL ~108(2)-GROUNDS-NEWLY DISCOVERED EVIDENCE-SUFFICIENCY. In an action to quiet title to lands, where the judgment, locating a section corner, was supported by unsatisfactory evidence, a new trial should have been granted, on discovery of an assistant to the original surveyor, whose affidavit identified a certain mound of stones as the corner, and the further discovery of the mound of stones, whose existence was not known at the time of the trial. Department 1. Appeal from Superior Court, Lake County; M. S. Sayre, Judge. Action by Joshua Spiers against Elizabeth Spiers and another. From a judgment for plaintiff, and an order denying motion for new trial, defendants appeal. Judgment vacated, and order reversed. H. B. Churchill, of Lakeport, and Charles Stewart and J. E. Pemberton, both of San Francisco, for appellants. C. M. Crawford, of Lakeport, for respondent. SHAW, J. The defendants appeal from the judgment and from an order denying their motion for a new trial. The complaint stated a cause of action to quiet title to a parcel of land described as lot 2, of section 5, township 11 north, range 7 west, in Lake county. The defendants are the owners of lot 1, adjoining lot 2 on the east. The only point in dispute is the location of the division line between the two parcels. The position of this line is controlled by the location of the northeast corner of section 5, which is also the northeast corner of lot 1. It does not appear that the corner at the intersection of the division line of the lots with the north line of section 5 was fixed and monumented by the government survey. The corner of lot 2, was fixed, and the monument still remains. The position of the division line is to be fixed by ascertaining the location of the northeast corner of the section, and dividing the distance between that and the quarter section corner. The parties differ solely with respect to the location of the said northeast corner of the section, it being also the northwest corner of section 4. The plaintiff derives title to lot No. 2 from the United States under a recent entry as a homestead claim. The defendants deraign title from the United States to lot 1, through Charles C. Copsey, who entered upon and obtained title thereto about the year 1877. Near the division line are situated certain mineral springs, known as Copsey's Springs. Aside from these springs, the land is of little value, and the controversy arises from the claim of the plaintiff that the easterly line of lot 2 is only 8 feet west of the main spring of said Copsey's Springs, and that several of the springs are included in lot 2; whereas, the contention of the defendants is that said line is some 200 feet westerly of said springs. The court found that the monument set for the northeast corner of section 5 had been obliterated, so that its location could not be ascertained, and that the location thereof must be determined by what is known as the proportional method. The surveyors of the plaintiff testified that they found the corner monument at the northwest corner of lot 2, being the quarter section corner on the north side of section 5, and then proceeded easterly on the section lines of sections 5 and 4, and were unable to discover or locate any government monuments of the section or quarter section corners, until they reached the northeast corner of section 4; that thereupon they concluded that the common corner of sections 4 and 5 was to be treated as a "lost corner" and its location fixed by the proportional method. Accordingly they divided the distance between the known monuments into six equal parts, and located the section corner by measuring off four of these parts to the east, and two to the west, between the section corner and the quarter section corner of section 5. The court found in accordance with this survey and gave judgment accordingly. The effect was to fix the division line as above stated, 8 feet west of the main Copsey Spring. We have concluded that the court erred in refusing to grant the motion for a new trial for newly discovered evidence. This renders it unnecessary to consider the sufficiency of the evidence to sustain the findings of the court, except so far as its weakness may tend to explain our conclusion as to the necessity of a new trial. The field notes of the government survey state that the monument was set at the northeast corner of section 5 "on top ence to the boundary lines. His conduct is strong evidence against the finding of the court. These circumstances sufficiently show that the location of the corner as fixed by the court was at all events not the location thereof as fixed by the original government survey. The discovery of any additional evidence tending to fix the location "on top of ridge," as stated in the field notes, would be strong reason for directing a new trial. It is not clear that either the court below or the surveyors for the plaintiff correctly understood the rule with respect to the application of the proportional method of locatIn Weaver v. Howatt, 161 ing lost corners. Cal. 84, 118 Pac. 522, the court said: "The trial court must ascertain, as near as may be, where this monument was set by the If the exact spot cangovernment surveyor. not be found, it must, if possible, decide from the data appearing in evidence its approximate position, and the proportional method is to be used only when no other reasonable method is possible, and it must be so used that it does not contradict or conflict with the official data that are not impeached, and which, when not impeached, confine the actual position within certain limits. The application of the proportional method must, in that case, be also confined to the same limits." of ridge, bearing south 30 degrees east, and north 30 degrees west." The court fixed this corner in a depression easterly of the ridge and not on top thereof. The field notes state that at a point 2 chains east of said corner the "trail from Copsey's Springs to Lower Lake bears north and south." The plaintiff's surveyors were unable to find this trail. The testimony in behalf of the defendants tended to show that it was discoverable, and that by that mark the corner fixed by the court is too far to the east. Defendant's witnesses testified that they found a mound of stones near the top of the ridge, but a little farther west than they expected to find it, which they accepted as the section corner. The survey of sections 4 and 5 was made in 1876. The government survey of the sections immediately north, lying in township 12, was made in 1883 and 1884. The field notes of that survey state that the monument set for the northeast corner of section 5, by the previous survey, was discovered. There was an offset of 12 chains between the section corners of township 12 and those of township 11, in which this land is situated. The field notes of township 12 state that the section corner between sections 32 and 33, on the township line, was 12.05 chains west of the said monument for the northeast corner of section 5, and that the surveyor found the post set in said monument and destroyed that part of the mark thereon relating to township 12. There was evidence to the effect This doctrine was affirmed in Weaver v. that the monument set for the corner between Howatt, 171 Cal. 302, 152 Pac. 925, being a sections 32 and 33 was found, and that it was second appeal upon the same case after situated 12 chains west of the mound of an intervening trial. It is doubtful whether stones which defendants claim to be the or not, in view of this rule, the court could northeast corner of section 5. There was also in any event relocate the corner otherwise testimony that Copsey, who was in possession than "on top of ridge" referred to in the The newly discovered evidence of lot 1 for many years under his government | field notes. title, had claimed that his northeast corner would tend at least to locate it much nearer was on top of the ridge aforesaid, and that to that point. the western line of lot 1 was on the hillside west of the springs, and several hundred feet away. And further: "It is for the trial court, upon all the evidence, to fix the place at a point where it will best accord with the natural objects described in the field notes as being about it, and found to exist on the ground, and which is least inconsistent with the distances mentioned in the notes and plat." The affidavits in support of the motion for a new trial show that the only surviving member of the crew of assistants of the government surveyor for the survey of 1876, was one William Blann, who resided in Woodland, in Yolo county. The map and field notes of the survey, a copy of which was introduced in evidence at the trial, did not give the names of the assistants. After the trial the fact that Blann was one of Copsey's Springs were discovered by C. C. Copsey prior to the government survey in 1876, and at that time he was in possession thereof and was conducting a health resort thereon. Shortly after that survey was ap proved he made entry thereon and secured a patent for lot 1, and thereafter, evidently them, and that he was living in Yolo county, believing that it included all of the springs was discovered. He was taken to the premaforesaid, he continued to occupy and use the ises, and made affidavit that the mound of place as before, and erected buildings and stones claimed by the defendants to be the other improvements thereon. As he was oc- true location of the corner in dispute is the cupying the springs when the government sursame mound of stones which he assisted to vey was made, and took them up for entry set for that corner in making the survey of very shortly afterwards, when the corners 1876. There was no evidence given at the and marks of the survey must have been visi- trial by any witness who claimed to have ble and well known, and as his main purpose seen this mound at or near the time of the was to secure possession of the springs, it is making of the survey. By counter affidavits improbable that he should have been mistak- it was shown that Blann had resided at Low the property which they and their predecessors in interest had for so many years in good faith enjoyed and claimed. While this court seldom interferes with the discretion of the trial court in denying a motion for a new trial for newly discovered evidence, yet, in view of the peculiar nature of the question involved, we believe this to be one of the exceptional cases in which the action of the court below in refusing a new trial should be overruled. many years prior to 1897, and that he then in question, thus saving to the defendants removed to Woodland, Yolo county, where he has ever since resided, and that the record of the government survey, showing his name as one of the assistants, was in the land office at San Francisco. It may be conceded that, so far as Blann's evidence is concerned, the court below may in its discretion have properly refused a new trial, on the ground that due diligence was not exercised in endeavoring to find it before the trial. Nevertheless it tends to throw doubt upon the accuracy of the court's finding. The judgment is vacated, and the order denying a new trial is reversed. We concur: SLOSS, J.; LAWLOR, J. BOGGESS et al. v. INDUSTRIAL ACCI- had gone on his own affairs had reached a But the affidavits of defendants further show that after the trial the defendant Hoberg and others made a careful search of all of the north line of section 4, and that at a point some 43 chains easterly from the northeast corner of section 4 they found a mound of stones with a decayed square stake lying therein marked on its north side with the characters" S"; that it showed great age, and that the south side was so weatherbeaten that nothing could be discovered thereon; that the mound was covered and hidden by a low, thick holly berry bush, which had apparently grown over and around it after it had been made. The field notes of the survey state that the surveyor set a post in a mound of stones at said quarter section corner, marked on the north and south sides, respectively, with the aforesaid characters. This evidence is not contradicted by counter affidavits. It is almost conclusive evidence of the location of the quar-employment, as his going to the mine on the ter section corner on the north line of section 4. The fact that the plaintiff's surveyors, three in number, searched this line In Bank. Proceedings under the Workand were unable to find this corner, that the men's Compensation Act by Jack Fenner to defendants' surveyor had also searched the obtain compensation for personal injuries, line before the trial, and failed to find it, opposed by R. A. Boggess, employer, and the and that it was so concealed by the bush as Employers' Liability Assurance Corporation, above mentioned, sufficiently absolves the Limited, insurer. Compensation was awarddefendants from the charge of lack of dili-ed, and the employer and the insurer apply gence in failing to discover it before the for a writ of review against the Industrial Jack Fenner. trial. Its position has an important bear- Accident Commission and ing on the proportional method of location. Award annulled. If it be admitted that the evidence of Blann should be disregarded, and that the monument claimed by the defendants to be the northeast corner of section 5 must also be disregarded, and the corner treated as a lost corner, then, in applying the proportional method, this newly found quarter section corner must be taken as the eastern limit of uncertainty, and the space between that quarter section corner and the quarter section corner on the north line of section 5, is the distance which is to be divided into four parts. According to the affidavits, if this is done, and the section corner located accordingly, the corner of section 5 would be fixed some 200 feet westerly of the location thereof as established by the court, and the division line in dispute would be a corresponding distance westerly of the springs Redman & Alexander, of San Francisco, for petitioners. Christopher M. Bradley, of San Francisco, for respondents. S. S. McCahill, of San Francisco, for applicant. SHAW, J. The Industrial Accident Commission made an award in favor of Jack Fenner to compensate him for injuries which he suffered from an accident which he claims arose out of his employment and happened in the course thereof. The petitioners ask that the said award be annulled, on the ground that the finding of the commission that the accident happened in the course of employment and arose out of it, is not sustained by any evidence. Fenner was a miner employed to work as such in a quicksilver mine owned by Boggess, known as the Abbott Mine, situated near |