ESTATES OF DECEASED PERSONS (Continued).

23. REMEDIES.-If a party, who claims that jurisdiction of the estate of a deceased person is not in the county where a petition for general letters of administration is first filed, has a will in his possession, he may either resist the granting of letters in the first county upon the ground that there is no jurisdiction there, without asking probate of the will, or, if he fails to show want of jurisdiction, he may then present his petition to that court to have the will probated in that county, whereupon that court will proceed accordingly to probate thereof. (Id.)

24. WILL-INSANITY-EVIDENCE-HYPOTHETICAL QUESTION.-A hypothetical question, on which medical experts base their opinions of the insanity of the testator, is utterly valueless in a will contest where the facts assumed in it are in conflict with the undisputed facts in the case and are inconsistent with other facts stated in the question. (Estate of Gould, 353.)

25. VERDICT-FORM OF.-The law requires a special verdict in a will contest and a general verdict is unauthorized; and where the only ground of contest is the unsoundness of mind of the testator the jury should find specifically upon the ultimate fact of incompetence.

(Id.)

26. INSTRUCTIONS.-In a will contest upon the ground of unsoundness of mind of the testator, an instruction that the jury could take into consideration the unnatural character of the will, without any explanation of how that fact was to be correlated with other facts, might well be misleading. (Id.)

27. ACCOUNTS-CLAIM OF ADMINISTRATRIX-JURISDICTION.-In a proceeding for the administration of the estate of a deceased person, the superior court has jurisdiction to determine that the administratrix has in her hands money of the estate which she has not accounted for and which she claims belongs to herself and not to the estate. (Estate of Fulton, 489.)

28. FINAL ACCOUNT AND PETITION FOR DISTRIBUTION-HEARING-TIME. The final account and petition for distribution in the estate of a deceased person may come on for hearing at the same time, at which the account should first be settled, and thereupon and without further delay the order of distribution may be made, without awaiting the expiration of the time for appeal from the order settling the account.

(Id.)

29. TRUSTS-COMPENSATION OF TRUSTEE.-A decree settling a current account of a testamentary trustee and allowing and approving a schedule attached to the account in which the value of certain stock belonging to the estate is shown to be more than it was in fact, during the period covered by the account, while increasing the corpus of the trust estate, does not injure or prejudice anyone interested in the estate so far as fixing the fees of the trustee is

ESTATES OF DECEASED PERSONS (Continued).

concerned, where the allowance to the trustee is based upon a percentage of the gross income and not upon the corpus of the property. (Estate of Duffill, 536.)

30. FIXING COMPENSATION-DISCRETION.-Under the codes the fixing of the compensation of testamentary trustees is left to the judicial discretion of the court, to be exercised, not arbitrarily, but always with due and proper consideration of the nature and extent of the services actually rendered. (Id.)

31. SERVICES CONSIDERED.-Services of a testamentary trustee fairly include not only what might be termed physical services, such as collecting and distributing the income, care of the property, making investments, and the like, but in addition the responsibilities arising from and ever attending the faithful and profitable administration of the trust. (Id.)

32. VALUE OF SERVICES.--The value of the services of a testamentary trustee should not be determined by comparing them with those of an executor or an administrator, as such a trustee is subject to greater responsibilities than a personal representative of a deceased person of an estate of equal size. (Id.)

33. DEFENSE OF TRUST - ATTORNEYS' FEES. Where a testamentary trustee entered into an agreement with its attorneys that their fees should be wholly contingent on the preservation of the trust, and that it would be necessary for the court to fix and allow such fees as would be reasonable under all the circumstances, and that any fee paid to them should be approved by the court, the agreement did not provide for a contingent fee as commonly understood. (Id.)

34. EVIDENCE EXPERT TESTIMONY.

-Testimony of attorneys as to the proper amount to be allowed attorneys for a testamentary trustee is not binding upon the court, which has the unquestioned power to fix the amount independent of expert testimony. (Id.)

35. ATTORNEYS' FEES-AMOUNT.-It is held in this case that the fees allowed the attorneys for the testamentary trustee, in view of all the circumstances of the litigation, in connection with which they were allowed, its importance, the amount involved, and the extent and character of the services, were not excessive. (Id.)

36. DEFENSE OF TRUST-DUTY OF TRUSTEE-COMPENSATION OF ATTORNEYS.-Where one of the beneficiaries under a testamentary trust assailed the validity of the entire trust, it was the duty of the trustee to defend the trust, and where it succeeded in preserving the general scheme of the trust, its attorneys should be compensated for the entire services, and the amount should not be apportioned among the beneficiaries according as the service helped or injured the different ones. (Id.)

ESTATES OF DECEASED PERSONS (Continued).

37. EXPENSES OF TRUST SOURCE OF PAYMENT.-While, under ordinary conditions, the customary expenses incurred in the administration

of a trust are payable from the income, extraordinary and unusual expenses are payable from the corpus of the trust. (Id.)

38. COMPENSATION OF PERSONAL ATTORNEY.-The contention that the interest of a beneficiary under a testamentary trust in the corpus of the trust property should contribute no part of the fee of the attorneys for the trustee, because the beneficiary was obliged to compensate his personal counsel who represented him in his effort to secure the complete annulment of the trust, cannot be maintained. (Id.)

39. CLAIMS-EVIDENCE-INCOMPETENCY OF WITNESS-WAIVER-DEPOSITION. In an action by a physician against the executor of the will of a deceased person, upon a claim for services alleged to have been rendered the daughter of the decedent, the plaintiff is an incompetent witness, but the incompetency may be waived by the executor, and is waived where the latter took the deposition of the plaintiff, although he declined to use it on the trial. (McClenahan v. Keyes, 574.)

40. WILL-SELECTION OF ATTORNEY BY TESTATOR-POWER OF EXECUTOR. A provision in a will directing and specially requesting that an attorney named therein be the attorney of record in the matter of the probating of the estate of the testator does not constitute a selection of an attorney which is binding on the executor, but is simply an advisory provision which the executor may disregard if he chooses to do so. (Highfield v. Bozio, 727.)

41. AMENDMENT OF SECTION 1616 OF THE CODE OF CIVIL PROCEDURE-RIGHT OF SELECTION BY EXECUTOR UNAFFECTED.-The amendment to section 1616 of the Code of Civil Procedure, which provides that the attorney for the executor or administrator, upon notice to the interested parties, may apply for and obtain an order that his compensation be paid by the executor or administrator out of the estate in his hands, does not purport to take away the authority or power of the executor or administrator to select and employ an attorney to advise and assist him in the administration of the estate, nor does it purport to regulate, or affect in any manner, the exercise of that authority or power. (Id.)

See Evidence, 1, 2; Vendor's Lien, 1; Wills; 1, 2, 4, 5.

ESTOPPEL. See Confidential Relations, 7; Judgments, 4; Workmen's Compensation Act, 6.

EVIDENCE.

1. ESTATES OF DECEASED PERSONS-CLAIMS AGAINST-EVIDENCE-DISQUALIFICATION OF PARTIES AND ASSIGNORS. The parties, or as

EVIDENCE (Continued).

signors of parties, to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or a demand against the estate of a deceased person cannot be witnesses as to any matter or fact occurring before the death of such deceased person. (Ruble v. Richardson, 150.)

2. WILLS-CONTRACT FOR COMPENSATION-CLAIM.-It is essential to an action for breach of contract to compensate one for services by making provisions in such person's favor in a will that a claim against the estate be presented, and the rule of section 1880, subdivision 3, of the Code of Civil Procedure, prohibiting parties or their assignors from testifying, applies to such a claim. (Id.) 3. COMPETENCY-SOURCE.-Where competent evidence is produced on a trial the courts will not stop to inquire or investigate the source from whence it comes or the means by which it was obtained. (People v. Mayen, 237.)

4. RIGHT OF ACCUSED TO REMAIN SILENT-CONSTITUTIONAL LAW.— Section 13 of article I of the state constitution and the fifth amendment to the federal constitution, providing that no person shall be compelled in any criminal case to be a witness against himself, means that he has the right at all the stages of the investigation to stand silent and inert before his accusers, and if he is required to contribute by word or act to the evidence against himself, his constitutional right is invaded. (Id.)

5. PHYSICIANS AND SURGEONS-WITNESSES-EXPERTS-COMPENSATION. A physician who has acquired knowledge of a patient, or of specific facts in connection with the patient, may be called upon to testify to those facts without any compensation other than the ordinary witness receives for attendance on court; and, in the absence of a contract therefor, such physician cannot recover additional compensation for services as an expert witness. (McClenahan v. Keyes, 574.)

See Agency, 3; Appeal, 3, 11; Attorney and Client, 3, 4; Charters, 1; Checks, 1, 2, 4; Confidential Relations, 2, 3; Contracts, 5; Corporations, 5; Criminal Law, 3, 19, 21, 28–35, 38, 46–51, 56, 57; Divorce, 7, 8; Ejectment, 2, 3; Estates of Deceased Persons 10, 24, 34-36; Judgments, 4; Malicious Prosecution, 6-10; Negligence, 1, 2, 6, 7, 19, 20, 29, 31; New Trial, 1; Public Utilities, 2-4, 6; Quieting Title, 2; Search and Seizure, 3, 4; Statutes, 4; Taxation, 2, 5; Waters and Water Rights, 10, 13; Wills, 3-5.

EXECUTION. See Partnership, 2.

EXECUTORS AND ADMINISTRATORS. See Attorney and Client, 2; Estates of Deceased Persons, 18-21, 41.

EXEMPTION. See Condemnation of Land, 1.

EXTORTION. See Criminal Law, 54, 56.

EXTRADITION. See Criminal Law, 10, 12.

FACT. See Negligence, 24, 29.

FALSE IMPRISONMENT. See Public Officers, 4, 5.

FEES. See Estates of Deceased Persons, 29, 30.

FINDINGS.

1. PLEADINGS-ADMISSIONS.-When a trial is had by the court without a jury, a fact admitted by the pleadings should be treated as found. (Sacre v. Chalupnik, 386.)

2. EJECTMENT-ENTRY AND OUSTER-MISTAKE IN STIPULATION-ADMISSIONS OF PLEADING.-In an action in ejectment, a finding embodying a stipulation of fact that the date of ouster was after the commencement of the suit, which stipulation was apparently the result of a mistake in dictation or transcribing, is irrelevant and may be disregarded, where the answer and cross-complaint of the defendants admit the ouster to have been prior to the commencement of the suit. (Id.)

See Appeal, 4; Contracts, 4; Malicious Prosecution, 1; Negligence, 3, 4; Public Utilities, 1.

FIXTURES. See Public Lands, 2, 4.

FOREIGN CORPORATIONS. See Taxation, 11.

FRANCHISES. See Broughton Act, 1; Constitutional Law, 1, 2; Corporations, 9; Taxation, 1, 4, 5.

FRAUD.

DEFENSE OF FRAUD-TIME FOR MAKING.-While it is the rule generally that a cause of action grounded in fraud must be instituted within three years from the time of the discovery of the fraud, that rule does not apply to a defense interposed upon the ground of fraud in a case where it is affirmatively sought to have declared valid and enforceable a contract claimed to have been signed and consummated in fraud. In such a case neither the limitations of the statute nor the doctrine of laches will operate to bar the defense of the invalidity of the agreement upon the ground of fraud, for as long as the plaintiff is permitted to come into court seeking to enforce the agreement, the defendant may allege and prove fraud as a defense. (Estate of Cover, 133.) See Attorney and Client, 8; Banks and Banking, 1-4; Contracts, 9; Negligence, 18.