ing day. Held, a waiver by the state's attorney of the service on him of the written notice of two days required by Pen. Code, § 1171.

In bank.

Application for writ of mandate to W. R. Daingerfield, judge of the superior court of city and county of San Francisco, commanding him to settle a bill of exceptions. Granted.

required to be served upon the district attorney by the provisions of section 1171 of the Penal Code had not been given. The court sustained the objection, and refused to settle the bill.

Section 1171 of the Penal Code marks out the procedure to be followed in the preparation and settlement of bills of exceptions in criminal cases; and, while this statute should

GAROUTTE, J. This is a motion, upon previous notice, for a peremptory mandate to W. R. Daingerfield, judge of the superior court of San Francisco, commanding him to settle a bill of exceptions. The petitioner

was convicted of a felony in the department of the superior court presided over by the respondent, and upon December 12th duly served and filed his notice of appeal from the judgment and order denying his motion for a new trial. On January 11, 1895, and within due time, defendant's counsel presented to respondent, in open court, his proposed bill of exceptions. At that time respondent stated that such matters usually came up regularly on the last Saturday of each month, and he thereupon caused it to be placed upon the calendar for Saturday, the 26th day of January, for a hearing. Before handing the proposed bill of exceptions to respondent on January 11th, counsel for petitioner verbally notified the district attorney that he was about to do so, and requested him to examine the draft as soon as possible, in order to expedite its settlement. Being referred by the district attorney to special counsel for the people, Mr. Deuprey, he also gave him verbal notice that he was about to present the draft to respondent, and requested him to examine it and prepare his amendments as soon as possible, to which request Mr. Deuprey replied that he would. On Friday, January 25th, affiant called on said Deuprey at his office, and inquired of him personally if he would be ready on the following day to settle said proposed bill, to which said Deuprey replied that he would be ready at 11 o'clock a. m. next day. At 11 o'clock on January 26th affiant attended in court, and, upon said matter being called for settlement, a clerk from said Deuprey's office stated that Mr. Deuprey could not be present that day, and requested that the matter go over to a future day. It was then agreed by affiant and said clerk that said Deuprey should call at affiant's office on Monday, January 28th, at 1:30 p. m., to settle said bill, if possible, out of court. That on said last-named hour and day suid clerk of Mr. Deuprey called at affiant's office and requested that the settlement of said bill be continued to January 29th, at 10 o'clock a. m., before said judge. On the matter coming on to be heard at that time, said Deuprey objected to the settlement of said proposed bill of exceptions upon the ground that the two days' written notice

fendant's right of appeal upon a bill of exceptions, we do not think the exigencies of the present case even demand a construction of the statute. The object and purpose of service of notice upon the district attorney is to give that official an opportunity to prepare and offer his amendments to the bill at the hearing. The facts summarized show that the hearing was set for January 26th, and counsel for the people had actual notice of it several days prior to that time. He was directly informed of it by the judge, had the proposed bill of exceptions in his possession, and was engaged in the labor of preparing his amendments thereto. He stated to defendant's counsel upon January 25th that he would be ready to proceed with the settlement of the bill upon the following day. At that time Mr. Deuprey's clerk appeared in court and requested a continuance, which was granted, and it was thereupon agreed between said clerk and defendant's counsel that Mr. Deuprey should call at the office of defendant's counsel upon January 28th, and they should then attempt to settle said bill without the assistance of the court. At that time Mr. Deuprey, by his clerk, requested a continuance until the following. day at 10 a. m., before the judge, at which time the bill was refused settlement. The defendant should seldom, if ever, be deprived of his right of appeal upon a bill of exceptions, or otherwise, by any failure upon his part to comply with the technical requirements of the statute. The law should be liberally construed as to such matters in his favor, and in this case, upon the showing made, we think it may well be held that the conduct of counsel for the people was such as to constitute a waiver upon his part of the service upon him of the written notice of two days required by said section 1171. For these reasons it is ordered that the writ issue as prayed for.

We concur: BEATTY, C. J.; McFARLAND, J.; VAN FLEET, J.; HARRISON, J.; TEMPLE, J.; HENSHAW, J.

In re COMASSI'S ESTATE. (No. 18,393.) = (Supreme Court of California. April 3, 1895.) REVOCATION OF WILL-MARRIAGE ADOPTION OF CHILD.

1. Under Code Civ. Proc. § 1970, which declares that a will cannot be revoked otherwise than as provided by the Civil Code, and Civ.. Code, § 1292, providing that no will can be re

1 Rehearing denied.

voked except by declaring such revocation in a subsequent will, or by canceling or destroying with intent to revoke, a will executed by a married woman will not be revoked by the death of her then husband and her subsequent marriage.

2. An adopted child is not "issue of the marriage," within the meaning of Civ. Code. § 1298, providing that if a testator marry, and have issue of such marriage, his former will is revoked.

In bank. Appeal from superior court, Sacramento county; Matt. F. Johnson, Judge. Appeal from an order denying an application for probate of the will of Clara G. Comassi, deceased. Reversed.

A. C. Searle, for appellant. Armstrong, Bruner & Platnauer, for respondent.

HARRISON, J.

Clara G. Comassi died in the city of Sacramento July 31, 1892, and thereafter a document bearing date June 23, 1877, purporting to be her last will and testament, was presented to the superior court for probate. The probate was contested by Mabel Delphina Comassi, formerly Mabel Delphina Eric, claiming as heir to the deceased, by virtue of an adoption; and upon the hearing of the contest the court found that in May, 1886, upon proceedings had in the superior court for Yuba county, that court made an order declaring that Mabel should thenceforth be regarded as the child of said Clara G. Comassi, and that the said Mabel and the said Clara should sustain towards each other the legal relation of parent and child. The court also found that the will was properly executed, and that at the time of its execution the deceased was in all respects competent to make a will; that she was at that time a married woman, the wife of one G. Comassi; that her husband died on the 26th of December, 1878, and that on the 25th of August, 1886, she was again married to Joseph O. Barbeau, from whom she was subsequently divorced. The court held that her marriage subsequent to the execution of the will had the effect to revoke it, and denied the application for its probate. From this order the petitioner has appealed.

The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation. The power of the legislature to limit the class of persons who shall be competent to make a will, or to declare that a change in the personal status of such persons after its execution shall operate as a revocation of the will, or be a sufficient reason for denying it probate, is unquestioned. "The Civil Code establishes the law of this state upon the subjects to which it relates" (section 4); and in order to determine whether a will has been properly executed or revoked, or whether, after its execution, there has been such a change in the status or personal relations of the testator as in law will effect its revocation, we

have only to determine whether, in the one case, there has been a compliance with the requirements of the statute, or, in the other case, whether the changed condition of the testator is within the conditions named in the statute. By the common law a married woman had no power to make a will, and the marriage of a woman revoked any will that she had previously made. In this state, however, there is no restriction upon the power of a married woman to make a will, and upon proof of its execution it is entitled to probate, the same as the will of any other person, unless it is shown to have been revoked in one of the modes prescribed by the statute. Section 1292 of the Civil Code declares: "Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: (1) By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, (2) by being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence, and by his direction." And section 1970, Code Civ. Proc., declares: "A written will cannot be revoked or altered otherwise than as provided in the Civil Code." The effect of these provisions is to do away with the doctrine of implied revocation, which was for so many years a subject of controversy in the English courts, and which, in many of the states of this country, is still permitted, under a clause in their statutes authorizing a revocation to be "implied by law from subsequent changes in the condition or circumstances of the testator."

The respondent does not controvert the effect of these provisions, but contends that, under the provisions of section 1300 of the Civil Code, the subsequent marriage of the testatrix had the effect to revoke her will. That section is as follows: "A will executed by an unmarried woman is revoked by her subsequent marriage, and is not revived by the death of her husband." By its own terms, this section is applicable only to a will "executed by an unmarried woman,' and can have no application to the present case, for the reason that at the time of the execution of her will the testatrix was a married woman, whose husband was at that time living. The argument of the respondent that this section controls the present case, for the reason that at the time of her subsequent marriage her will was the will of an unmarried woman, fails to cover all the conditions which the section prescribes as essential to the revocation of a will previously executed. The section does not declare that every will of an unmarried woman shall be revoked by her subsequent marriage, but, by its terms, limits such revocation to "a will executed by an unmarried woman";

and, unless she was unmarried at the time she executed her will, the section has no application. A will is "executed" when it is signed and attested in the manner prescribed by section 1276, and the will in the present case was so executed in 1877, at a time when Mrs. Comassi was a married woman. The Code is silent respecting the effect of a subsequent marriage upon a will executed by a married woman; and, as the present will is not within any of the cases named in the chapter on "Wills," it is not excepted from the provisions of section 1292, and could be revoked only in one of the modes therein specified. In many states it has been held that the statutes which enable a married woman to execute a will have taken away the reason for the common-law rule which held that the marriage of a woman revoked a will previously made by her, and that consequently the rule itself is no longer applicable. Webb v. Jones, 36 N. J. Eq. 163; Will of Ward, 70 Wis. 251, 35 N. W. 731; Roane v. Hollingshead, 76 Md. 369, 25 Atl. 307; Emery, Appellant (In re Hunt's Will), 81 Me. 275, 17 Atl. 68. In Ohio it is expressly declared by statute that such marriage shall not revoke her will. In this state the legislature has seen fit to adopt a different policy, but has limited the effect of marriage to a will executed by an unmarried woman. It is as useless to conjecture the motives that may have governed the legislature in singling out an unmarried woman as the only person whose will shall be affected by her subsequent marriage, as it is to conjecture why there should be a difference in the effect of a subsequent marriage upon a will executed by an unmarried man and upon one executed by an unmarried woman. It has conferred upon each the same ability to make a will after marriage as before, and a woman can, immediately after her marriage, make a will identical with the one made by her before her marriage. The legislature has, however, made these distinctions, and courts have no alternative except to give effect to them. If it had been the purpose of the legislature that the will of any woman should be revoked by her subsequent marriage, it could have readily expressed that purpose in apt words, as has been done by the wills act of England (1 Vict. c. 26), the eighteenth section of which provides that "every will made by a man or woman shall be revoked by his or her marriage." The same provision is found in the statutes of many states in this country. Instead of so doing, however, the legislature of this state has limited this result to a will executed by an unmarried woman, in language which gives no opportunity for construction. To hold that a will executed by a married woman will, upon her subsequent marriage, be attended with the same result as that executed by an unmarried woman, would be to interpolate into the statute words that the legislature has industriously v.40r.no.1-2

omitted. The provision of section 1300 is the same as section 13 of the wills act of 1850 (St. 1850, p. 178), and was evidently taken from the Revised Statutes of New York, and in that state the precise question here presented has been determined in accordance with this opinion. In re Burton's Will (Surr.) 25 N. Y. Supp. 824. See, also, In re Kaufman, 131 N. Y. 620, 30 N. E. 242.

Section 1298 of the Civil Code has no application. The conditions required by this section are that the testator shall not only have married, but shall also have issue of such marriage, in order to a revocation of his will. The adoption of a stranger in blood is not the issue of the marriage, and cannot be treated as its equivalent. Davis V. Fogle, 124 Ind. 41, 23 N. E. 860. Section 1299 is, by its terms, limited to a survival of the testator by the "wife," whereas in the present case it is the wife who has died. The judgment denying probate to the will is reversed.

We concur: GAROUTTE, J.; VAN FLEET, J.; MCFARLAND, J.

JONES v. SHUEY et al. (No. 15,727.) (Supreme Court of California. April 3, 1895.) MECHANIC'S LIEN-PLEADING AND PROOF-VARIANCE-TEnder.

1. Where the claim of mechanic's lien, and the complaint in an action to foreclose the lien, alleged a contract to pay plaintiff $3.50 per day, and a contract to pay the reasonable value of his services was proved, and such value was shown to be $2.84 per day, the variance is fatal. 2. A tender, to be valid, must be uncondi

tional.

Department 1. Appeal from superior court, Contra Costa county; Joseph P. Jones, Judge.

Action by L. S. Jones against J. A. Shuey and the Southern Pacific Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.

W. S. Tinning, for appellants. R. H. Latimer, for respondent.

PER CURIAM. This is an action to foreclose a mechanic's lien. The defendant Shuey is the lessee of the land upon which the building is situated, and his codefendant is the owner thereof. The contractor is not made a party to the action. The plaintiff is a carpenter who was hired by the contractor, and he subsequently filed his notice of lien, wherein he stated that he was "to work on the building.or structure then being erected on said land, for the sum of three and fifty onehundredths dollars per day, for each and every day said L. S. Jones worked on said building or structure." The allegations of the complaint as to the character of the contract were in line with the claim of lien, but upon the evidence offered at the trial the court in effect found the contract not to be express,

but implied, as to the amount of wages to be paid; and, as we construe the finding, found that plaintiff was to be paid whatever sum his services were reasonably worth; and also further found that such services were reasonably worth the sum of $2.84 per day. It thus appears that the contract proven is not the contract alleged, neither is it the contract set out in the notice of lien, and the variance is so broad and so material as to demand a reversal of the judgment. The identical question here presented arose in the very recent case of Wagner v. Hansen, 103 Cal. 104, 37 Pac. 195, and a reversal of the judgment was the result. See, also, Reed v. Norton, 90 Cal. 599, 26 Pac. 767, and 27 Pac. 426. The court was justified in holding that no valid and legal tender had been made. A tender must be unconditional. Brown v. Gilmore, 22 Am. Dec. 223. We also think the demurrer to the complaint was properly overruled. The court found as a fact that Walton, the contractor, was the agent of both defendants, and rendered judgment against them accordingly. There is no evidence whatever in the record to support a finding to that effect. For the foregoing reasons, the judgment and order are reversed, and the cause remanded.

GOODWIN v. SCHEERER et al. (No. 15,560.)1

(Supreme Court of California. April 3, 1895.) JUDICIAL NOTICE - LOCATION OF LAND EJECTMENT-BURDEN OF PROOF-SUFFICIENCY OF EVIDENCE-ADVERSE POSSESSION.

1. A court will not take judicial notice that a certain tract of land is or is not included within the boundaries of a particular patent.

2. Proof by plaintiff that his grantors held undisputed possession of the land in controversy for more than five years before they were dispossessed by the defendant entitles him to recover against a defendant in possession who offers no evidence in support of his right to the land, or the title of those under whom he claimed.

3. Where the city under which defendant holds as lessee, before the making of the lease, granted all its rights in occupied lands within a territory including the disputed premises, the burden of showing that the lands in controversy were unoccupied, and so not included in the grant, is on defendant relying on that fact as an affirmative issue.

Department 1. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Ejectment by James W. Goodwin against Joseph Scheerer and the city and county of San Francisco. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Affirmed.

H. T. Creswell, for appellants. J. W. Goodwin and Geo. T. Wright, for respondent.

HARRISON, J. Ejectment for certain lands in the city and county of San Francisco. The cause was tried by the court without a jury, findings of fact were waived, 1 Rehearing denied.

and judgment rendered in favor of the plaintiff. A motion for a new trial was denied, and from this order and the judgment the defendants have appealed.

The

The evidence offered by the plaintiff showed that his grantors had been in the undisturbed possession and occupancy of distinct parcels of the land described in the complaint, one of them from April, 1885, and the other from July, 1885,-until December, 1890, when the defendant Scheerer took forcible possession of the entire land, and ousted them therefrom, and remained in possession until after the commencement of this action. The action is brought against Scheerer and the city and county of San Francisco. defendant Scheerer testified that a short time before taking possession he had obtained a lease of the property from the 'board of supervisors of the city, and had been put in possession thereof by the deputy superintendent of streets. The lease itself was not offered in evidence, nor was there any evidence given in support of the right of the city to make the lease, except the testimony of one of the witnesses that the property is a part of the old Mission or Channel creek land, reclaimed by the city, and that it had been always understood that it was city property.

It is contended by the appellants that it was incumbent upon the plaintiff to show that the land had not been reserved by the city for public use, and that, as no such evidence was given, the plaintiff was not entitled to judgment. The reasons urged in support of this proposition are that the court should take judicial notice that the land in question is a part of the Pueblo lands which were confirmed to the city of San Francisco by the decree of the circuit court of the United States May 18, 1865, and that as such confirmation was "in trust for the benefit of all lot holders under grants from some competent authority, and as to any residue in trust for the use and benefit of the inhabitants of the city," it is incumbent upon a claimant in ejectment against the city for any of the lands within the limits of the Pueblo to show that such lands had not been granted or reserved; and that a failure to show these facts is fatal to the action, even though the evidence on behalf of the plaintiff is in other respects sufficient to establish his right of recovery. It would be carrying the rule of judicial notice further than it has ever been carried to hold that the knowledge of the court includes the precise lines upon the surface of the earth which define the boundaries of a patent, or that any particular parcel of land is within or without those boundaries, or that any designated tract of land within the city and county of San Francisco is a portion of the lands which were confirmed to the city by the terms of the aforesaid decree. The boundaries of the city and county of San Francisco include a large quantity of territory that is not in

In

cluded within the limits of the Pueblo grant; and within the limits of the Pueblo grant, as confirmed by the decree, are many other tracts of land for which patents have been granted by the United States upon confirmed Mexican grants, and whose title is independent of the city and of the Pueblo claim. The city has itself become the owner by purchase of different parcels of these lands, and its title thereto is in no respect connected with the confirmation of the Pueblo claim. Since the entry of the decree by the circuit court confirming this claim the United States has itself granted to the city a portion of the lands which had been reserved by the decree for military purposes. Act July 1, 1870 (16 Stat. p. 186). The rule contended for by the appellant would require us to hold that in any action of ejectment against the city and county of San Francisco the court may determine, without the introduction of any evidence, that the land in controversy is not only within the limits of the patent for the Pueblo claim, but also that the city's claim to the demanded land is derived through the decree of the circuit court. Such a rule of evidence finds no support either in principle or precedent. The city is not precluded from acquiring land from other sources, and it has become the owner of different parcels of land by exchanging its own lands for those of other owners, as well as by purchase and by donation. See Mun. Rep. of S. F. 1867-68, pp. 459-463; also, St. of 1867-68, p. 60. an action by the city and county, as plaintiff, to recover possession of a parcel of land from the occupant, it would not be contended that she could rest her case upon her complaint, and that the burden would be upon the defendant to show that she was not entitled to a judgment of recovery. If no evidence were introduced in the case, the court would not be justified in giving judgment against the defendant upon the theory that by virtue of its judicial knowledge the demanded land was established to be a part of the Pueblo claim which had never been granted by any competent authority. The same rule must obtain when the city and county is a defendant, and the plaintiff has introduced evidence sufficient, in the absence of any evidence on her part, to entitle him to a recovery. The possession of land is itself prima facie evidence of ownership, and in an action of ejectment proof of such possession prior to the intrusion of the defendant is, in the absence of any evidence in support of the defendant's right to the possession, sufficient to authorize a judgment of recovery. If the plaintiff shows that such possession has been continued for a period long enough to bar an action for the recovery, he establishes a title by prescription. Civ. Code, § 1007. Upon such proof the burden is thrown upon the defendant to show that his right to retain the possession has not been overcome. After the plaintiff had shown in the present case

that his grantors had been in the quiet and undisturbed possession of the lands in controversy for a period of more than five years, and had been forcibly dispossessed by the defendant Scheerer, he was entitled to a judgment in his favor, unless the defendants should offer evidence in support of their claim to retain the possession. The defendants, however, offered no evidence in support of such claim, nor did they offer any evidence of the character of the title claimed by the city, or even that it claimed any title to the land, except as it may be inferred from the statement that it had made a lease to Scheerer.

It is, moreover, contended on behalf of the appellants that it was incumbent on the plaintiff to show that the land in question was in the possession of some one at the date of the Van Ness ordinance; otherwise, the land was a portion of the "residue" which, by the decree of the circuit court, was confirmed to the city in trust for the use and benefit of its inhabitants. The appellants have not, however, in their assignments of error, specified any insufficiency of evidence in this respect; their specification being that there is no evidence to show that the city "has not reserved the premises described in the amended complaint for public parks, streets, sites of schoolhouses, city hall, or other public building." Waiving the question, however, whether this objection is available to the appellants, we are of the opinion that the contention itself is untenable. If, as is claimed by them, the premises are within the territory covered by the Van Ness ordinance, the reservations provided for by that ordinance are only those which are delineated upon the map or plan provided for therein, which was subsequently ratified and confirmed by the state. 1858, p. 56. It is not claimed by the appellants that the land in controversy is delineated upon this map as one of the reservations thus made by the city; and by the terms of that ordinance the city granted all its right to the lands embraced within this territory, subject to those reservations, to the parties who were in the actual possession thereof on or before the 1st day of January, A. D. 1855, and who had continued in possession until the introduction of the ordinance. There is no presumption that any portion of the land covered by the ordinance was or was not in the actual possession of any one during this period; but, in any legal proceeding in which the fact whether a particular parcel of land was or was not then held in actual possession becomes material, it must be established by that party who relies upon the fact as an affirmative issue in support of his claim or defense. Code Civ. Proc. § 1981. The Judgment and order are affirmed.

St.

We concur: GAROUTTE, J.; VAN FLEET, J.