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qualify as if performing public work." The probability is that the claimants knew that no final survey could be had until the matter had passed through the courts, or the time to appeal had expired, but wanted for their own information to get an approximate idea of where their lines would run; hence this "preliminary” survey.

3. The opinion of the learned commissioner seems to assume that this preliininary survey, which had no force of itself, could derive force from the acts in pais of the claimants; for he dwells at some length upon the fact that the survey was made at the instance of the claimants, who assisted therein, and consequently knew all about where the lines were run, but made no sort of protest or objection thereto. Of this it may be remarked that the record here does not show any such condition of affairs; the statements in the opinion of the commissioner not being evidence against the defendant. But, in addition to this, we do not think that the word “claim," as used in the legislation on the subject, was intended to be controlled or defined by the conduct of the parties. That would be too vague and uncertain a test. The “claims” referred to must have been founded upon writings. And where, as here, the writings were presented to and confirmed by the land commission, the description in the decree could not be added to or varied by the acts in pais of the parties. The principal of estoppel can have no application. In the first place, no action was taken by the government, or by anybody else, upon the faith of this survey; and, in the second place, subsequent pre-emptioners do not in any sense claim through the claimants under the Mexican grant.

We think the Lewis survey does not overcome the effect of the case made by the defendant, and we therefore advise that the judgment and order denying a new trial be affirmed.

We concur: BELCHIER, C. C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.

I dissent: PATERSON, J.

(74 Cal. 365)

In re REINHARDT'S ESTATE. (No. 11,418.)


Testatrix bequeathed to her husband the use and income of all her property as long as he remained a widower, without power to dispose of or incumber the same, and with the proviso that, should he marry again, her share in the common property should go to her children. Held that, under this will, the husband was en. titled to the use and income of the property as long as he remained a widower, and, as to the fee, the decedent died intestate, and one-third should go to the husband, and the remaining two-thirds to the chilvren, in accordance with the provisions of Civil Code Cal. 2 1386, regulating the distribution of estates. Department 2. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge.

This was an appeal from a decree of distribution of the estate of Caroline Reinhardt, deceased. The appeal is brought by the children of the deceased, namely: Augusta Henrici, Flora Muller, Charlotte Brand, and Louis Reinhardt, and J. C. Bates and G. A. Fudickar as assignees of Augusta Henrici. The respondent is John B. Reinhardt, husband of the deceased.

J. M. Wood and Jos. Rothschild, for appellants. Stanly, Stony & Hayes, for respondent.

THORNTON, J. This is an appeal from a decree of distribution made and entered by the superior court of the city and county of San Francisco.

The case here presented turns on the meaning of the following portion of the will of the deceased above named: "I give and bequeath to my said husband, John B. Reinhardt, the use and income of all my property of which I may die possessed, to his sole use and benefit, as long as he remains my widower; provided, however, and it is hereby made an express condition, that he shall not be authorized to sell, convey, or dispose of, or mortgage, or in any way incumber, any of such property. But, in case he should marry again, then I direct that my share in the common property shall go to my children." The property subject to distribution, and distributed by the decree, was the separate property of the testatrix. No common property is involved herein, for there was none at the time the decree was rendered. J.B. Reinhardt, the husband mentioned in the will, remained unmarried and a widower. Four children survive the testatrix. The court held that J. B. Reinhardt took and held the use and income of the estate under the will as long as he remained the widower of the deceased; that is, that he took a determinable life-estate under the will only; and as to all the estate, except this determinable life-estate, the decedent died intestate. The court, having so held, then proceeded to distribute the estate according to the statute of descent in this state, and ordered its distribution as follows: To J. B. Reinhardt, widower of said deceased above named, the use and income of all the real and personal estate of decedent, and an undivided one-third in fee of said estate; to the children, or those who represented them, the residue.

There can be no doubt that the husband, J. B. Reinhardt, took a determinable life-estate, as the court ruled. That the remaining portion of the fee is undisposed of by the will is equally clear. We say "portion of the fee remaining," for the reason that the particular estate and the remainder, and, here, the life-estate, and that which is left at its termination, constitute one estate,--the fee. They are different and distinct parts of one whole. 2 Bl. Comm, 164. There is in the will no disposition of the residuum. We can perceive nothing in the words, “but, in case he should marry again, then I direct that my share of the common property shall go to my children,” adverse to such a conclusion. The fact that there was no common property of the testatrix does not alter the words of the devise of the common property; nor does the ignorance of the testator of the signification of the words used by him in a will affect the meaning which should attach to them.

A will is to be construed according to the intention of the testator. Civil Code, $ 1317. The intent is to be deduced from the words of the will. The meaning of the words employed in the will evince the intent. These words “must be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained." Civil Code, § 1324. “Where the words employed are technicul, they are to be taken in their technical sense, unless the context clearly indicates a contrary intention.” Civil Code, § 1327. There is nothing in the context here which shows that the words “common property” were not used in their technical sense. To give a different sense to the words of a wiil, because the testator did not know their meaning, would be contrary to every rule adopted for the construction of such instruments, and would in effect do away with the statute which requires them to be in writing. There is nothing inconsistent in devising the use and income of separate property to one for life, leaving the residue of the separate property undisposed of, and the common property to another when the life-estate terminates. If the testator had no power to devise common property, or had none to devise, we cannot see that the meaning of the words of the will would be changed or affected thereby. A devise of common property when there was none would not convey separate property. If a testator thought, as a matter of law, or was so

advised by counsel learned in the law, that he could pass a right to it by will, while under the law he could not, it could not be held, unless we disregard the law, that such a provision in a will should be construed to refer to and pass property which he could devise. As well might it be contended that a bequest of a watch, when the testator did not have one to bequeath, would pass some other article of personal property; or that a devise of a city lot, when the testator did not own one, would pass a farm in the country. As to the remainder of the separate property after the life-estate carved out of the fee has come to an end, the will is absolutely silent, unless we can hold that a life-estate of such property is the fee, which would be absurd.

We can find nothing in the will before us which tends to maintain the view that the children of the testator took the whole property distributed when the surviving husband married or died, under a devise arising by implication. As to the portion of the fee remaining on the termination of the life-estate, the will, as we have said above, and we say again, is silent. There is, then, nothing to support the implication. The foundation is wanting on which such implication can arise or stand. The implication must arise from and stand on something expressed in the will. It must be deduced from something said in the will. When the will is silent, and there is nothing from which an implication can be deduced, no implication can be indulged. We can discover in the will before us no devise by implication of the character mentioned. There is nothing in the point just discussed to alter the conclusion of intestacy heretofore announced.

If a larger estate will not be implied where a smaller estate is expressly granted, and we think this is sound law, (see Schouler, Wills, SS 559, 561,) it cannot be held that a bequest or devise of common property is under any circumstances a bequest of separate property. Nickerson v. Bowly, 8 Metc. 424, supports the result we have reached. The case cited arose upon the will of Thomas Rider, which was in these words: “As to such worldly interests as God hath been pleased to bless me with in this life, I give, bequeath, devise, and dispose of the same in the following manner, viz.: I give and bequeath to my wife, Polly Rider, the use and improvement of all my estate, real and personal and inixed, for her own use and benefit, so long as she may continue my widow. I also constitute and appoint my wife, Polly Rider, to be executor of this, my last will and testament.” No other disposition of any part of the testator's estate was made by will. He left no issue. Polly Rider died unmarried, having enjoyed the use and improvement of the estate during her life. She left a will appointing Bowly, the appellee, her executor. On the distribution of Thomas Rider's estate, one-half of it was decreed to the executor of Polly Rider, (In the report of this case there is some confusion in the name of the testator. The name is stated on page 424 to be Thomas Rider. On the succeeding page, in stating the estate to be distributed under the will, it is said to be that of David Rider. The words used are "said David Rider.” As there is no David Rider mentioned before, and Thomas Rider is the only one of that name mentioned, the implication is irresistible that the estate distributed was that of Thomas Rider.) The opinion is by SHAW, C. J., (no one dissenting.) After referring to the statute of distributions, under which the widow of an intestate, there being no issue, was entitled to have one-half of the estate distributed to her, he proceeded: “It is a well-established rule of law that the right to a distributive share of personal estate, under the statute of distributions, is a vested interest, vesting, in point of right, at the time of the decease of the intestate, although the persons to take, and the amount to be received, must be ascertained and determined by a decree of the probate court; which, from various causes affecting the settlement of the estate, may not be made till long afterwards. Davers v. Dewes, 3 P. Wms. 49, note; Foster v. Fifield, and Hayward v. Hayward, 20 Pick. 70, 519. It seems to follow as a necessary consequence that Mrs. Rider's vested right to one-half

of the personal property, subject to the gift of the use thereof to herself for life, like all other vested rights to personal property, went to her personal representatives. Such was the view which appears to have been taken of the case by the probate court; and we are of opinion that it was correct."

In the case cited, it was urged that it could not be reasonably inferred that it was the intention of the testator, after giving the property to his wife for life, that he intended that the life-tenant should have any part of it absolutely, and, in the absence of all expression of his intentions, it should be construed as a gift to his heirs by implication. As to this, the learned justice said: “A gift by implication must be founded upon some expressions in the will from which such intention can be inferred. It cannot be inferred from an absolute silence on the subject. It may be admitted, in a popular sense, that, when a deceased person has given a part of his property to one object of his bounty, he had no intention that such person should take another portion. But we think the true answer is that the intention of the testator is to govern 'so far only as he has communicated that intention by his will, either in terms or by implication; but, if he has left undevised property, the disposition of it is not governed by his will, but by another rule, having its origin in another source, in the application of which the intent of the testator is not the governing rule, and can have no influence. It operates in the same manner as if the deceased had left no other property, and made no will. If, therefore, the intent of the testator not to give the remainder to the same person could reasonably be inferred from a gift of personal property to one for life, in terms, it could have no effect in regulating the disposition of intestate property. If, however, it were thought important to inquire into the intent of the deceased, where he has made a will, but left property undisposed of, either in terms or by implication, as every man is presumed to know the law, it may reasonably be inferred as his intention that the residue should be disposed of according to law." The opinion then proceeds to state that the point seems to be well settled, both in England and Massachusetts, and cites Davers v. Dewes, 3 P. Wms. 40; Dicks v. Lambert, 4 Ves. 725, 732; Briggs v. Hosford, 22 Pick. 288; Ex parte Kempton, 23 Pick. 163. See, also, Schouler, Wills, § 568, and cases cited in notes. In the case just above cited the parties setting up the claim to the part distributed to the representative of Polly Rider were collateral heirs, and personal property was also involved. But these facts do not detract from it as authority here. We will add further, in the case cited by counsel for appellant (Robinson v. Greene, 14 R. I. 181) a devise by implication was allowed because the conclusion was irresistible. The court so said; at the same time observing that “the rule in regard to devises and bequests by implication is very strict.” Page 191.

The subject of devises raised by implication is much discussed in Parker v. Tootal, 11 H. L. C:18. 143. We think the conclusion here reached is sustained by what is said in that case. We refer particularly to the observations of the lord chancellor (WESTBURY) on page 162, as well as to the judgments of the other law lords therein. Lord WESTBURY, in his argument, lays stress on the rule that the intention must be collected from the language that the testator has used, and that, if the language is satisfied by going to a certain extent, there is no obligation to go further; which last is, in our judgment, but saying that a court cannot go further, consistently with the well-settled rule.

We are of opinion the court ruled correctly that, as to the residue of the fee above defined, the decedent, Caroline Reinhardt, died intestate. The property of persons dying intestate descends, under the statute, to those mentioned in it, of which the surviving husband is one. As to the residue of the property, not passing to the husband, of which the testator died intestate, it descended, under the statute, to her children. The intestate in this case left four children. In such a condition of the family, one-third vested at the time of the death of Caroline in the surviving husband, Reinhardt, and the other

two-thirds in her children in right, but not in its enjoyment, until the date at which they were entitled to distribution.

We find no error in the record, and the judgment is affirmed.


(14 Cal. 356)

WALSH 0. McMENOMY et al. (No. 11,721.)

(Supreme Court of California. December 20, 1887.) 1. MECHANIC'S LIEN - MATERIAL MEX - RIGHTS AGAINST OWNER -- PAYMENTS MADE BE


Under the California mechanic's lien law, as it existed prior to the amendment of March 18, 1885, the liens of material-men furnishing niaterials to a contractor are subject to the original contract. Held, that where, by the terms of the contract, a portion of the price is to be paid as the work progresses, and the balance a month after the work is completed, the owner, if he pays the full price before it becomes due, is liable to the material-man for materials furnished to the extent of the money

thus paid before due. 2. SAME-PRIORITIES_HOMESTEAD.

Civil Code Cal. & 1240, provides that a homestead is not exempt from execution or forced sale on debts secured by mechanics', laborers', or vendors' liens upon the premises. Held that, under this section, a homestead cannot be sold under the lien of a material-man, even though the materials were furnished before the homestead was declared, the lien being tiled subsequent to the declaration.'

Thornton, J., dissenting. In bank. Appeal from superior court, Los Angeles county; A. BRUNSON, Judge.

This was an action brought by T. Walsh against J. C. McMenomy, Mary McMenomy, his wife, and George Brittlestone, to enforce a lien for materials furnished to said Brittlestone, as contractor, to be used in the construction of a house for said Mc Menomy. Judgment was rendered for the plaintiff, and defendants appealed.

Bicknell & White and H. 1. Gage, for appellants. Barclay & Wilson and Wells, Van Dyke & Lee, for respondent.

SEARLS, C. J. This is an action to foreclose a mechanic's lien in favor of a material-man, and for labor performed. Plaintiff had judgment; from which, and from an order denying a new trial, defendants J. C. McMenomy and Mary J. McMenomy, his wife, appeal. The defendant Mary J. McMenomy owned a lot of land in the city of Los Angeles. Her husband, J. C. McMenomy, in 1884, made a contract with the defendant Brittlestone to build a house upon said lot of land. By the terms of the contract, 75 per cent. of the value of the work done was to be paid to the contractor upon the certificate of the architect, as the work progressed, and the balance of the contract price was to be paid within 35 days after the completion and delivery of the house, upon a certificate of the architect that the work had been done. Plaintiff furnished material to the contractor, which was used in the construction of the building, and finally the contractor, having failed to complete the work, performed labor to a small extent thereon, and it was completed within the time provided by the bondsmen of the contractor, without other expense to the owner than the contract price, which was $1,930, The building was completed April 28, 1885, accepted by McMenomy and wife, who went into possession, and have ever since occupied it. In January, 1885, and before the building was completed, defendant J. C. McMenomy paid the contractor in full for the erection of the building; all of which, except $1,100, was paid without any certificate

Respecting what debts will prevail over a claim of homestead exemption, see Berry v. Ewing, (Mo.) 3 S. W. Rep. 877; Butler v. Nelson, (Iowa,) 32 N. W. Rep. 399; Roberts v. Riggs, (Ky.) 1 S. W. Rep. 431; Holcomb v. Hood, Id. 401, and note.

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