ants produced a paper writing signed by him, dated March 2, 1892, and acknowledging the receipt from one of them of $240 toward payment of expenses on behalf of the legatees "in experting the books of Newman & Levinson." Being asked to explain the receipt, the witness said he had no explanation to give; he also said that he had given no credit in his account for said $240. The court allowed the full sum claimed for compensation of experts. We think the administrator mistook; and that the circumstances were such as to require him to explain that the money had by him as evidenced by the receipt was used to pay for services different from or in addition to those to those specified in specified in his account, or, for other reason, was not chargeable to him; and that, failing so to do, his credits should have been reduced by said sum of $240.

The allowance of the further sum of $433.30 paid to said accountants was a matter committed to the sound discretion of the court; there is no proof that such discretion was abused. (See Estate of Moore, 72 Cal. 336.)

6. The following credit item appearing in the account was allowed: "Dr. C. F. Buckley, services, $50.00." The administrator testified that payment thereof was made to Dr. Buckley for attendance as a witness on a motion for a receiver in a certain action instituted by the administrator; that he attended one day. The statute fixes the fees of witnesses at $2 per day. Why the further sum of $48 was paid does not appear in the record; its allowance was therefore erroneous.

7. The order appealed from directs that the sum of $500 be paid out of the estate to the law firm of Henley & MacSherry "for services rendered the estate and the administrator in the management of the estate." The services referred to were rendered in the conduct of the respondent's suit against the Newmans. The claim is stated in the account as among the "bills outstanding," no sum being named; but at the hearing said attorneys presented a statement claiming an allowance of $1,000 for their services. The principal contest in the court

below seems to have concerned the allowance of this item. Appellants make two points in this connection: 1. That the services were of no value; and 2. That an order directing payment to counsel who are strangers to the proceeding is void. As to the first, it suffices to say that the evidence was conflicting; while it pretty clearly appears that there was a wide divergence of opinion. between Messrs. Henley & MacSherry, and counsel associated with them, as to the policy to be pursued in the later stages of the trial of that cause, and that they, Henley & MacSherry, then entertained small hope of ultimate success, and so were insistent (as was the administrator) on a proposed compromise, which, if effected, would have given the estate little if any thing more than the expenses of the action, yet it does not appear but that the course they recommended comported with the proper discharge of professional obligation; in the light of the event it seems that it would have been most to the interest of the estate; and, without signifying approval of all the methods employed by them and by the administrator in the effort to bring about such compromise, it ought to be said that the evidence does not substantiate appellants' charge that they and the administrator "became traitors to the interests of the decedent's estate, and treacherously exerted themselves to bring about a judgment for the defendants."

There was error, however, in the direction that the payment be made to the attorneys. Like other necessary expenses incurred in course of administration, the fees of counsel are to be allowed out of the estate to the executor or administrator; such is the reading of the statute (Code Civ. Proc., sec. 1616), and the effect of the decisions of this court. (Estate of Ogier, 101 Cal. 385; 40 Am. St. Rep. 61; Henry v. Superior Court, 93 Cal. 569; Estate of Blythe, 103 Cal. 350; Pennie v. Roach, 94 Cal. 515; Sharon v. Sharon, 75 Cal. 38.)

8. Since the court found that the charges of misfeasance against the respondent were false, it properly allowed him credit for the item of $100 paid for assist

ance of counsel in defending himself against the same; it would be otherwise if the charges were sustained. ner's Law of Administration, sec. 516.)

(Wor

The cause is remanded, with instructions to the superior court to modify the order appealed from in these particulars, viz: 1. Striking out therefrom all allowance for commissions, with leave to respondent to move for an allowance of his reasonable proportion of commissions upon the final settlement of the estate; 2. Allowing to respondent $500 for services of his attorneys, Henley & MacSherry, and striking out the allowance to said attorneys; 3. Allowing for services of experts $433.30, instead of $673.30; 4. Allowing for payment of Dr. Buckley $2, instead of $50. And as thus modified the order will stand affirmed.

Hearing in Bank denied.

A motion having been made to recall the remittitur, the following opinion was rendered thereon on the 23d of November, 1895.

THE COURT.-Motion to recall the remittitur herein for the purpose of securing a modifical of the direction made therein for the payment of the costs of the appeal.

Without reference to the merits of the motion, it comes too late. The remittitur was regularly issued on September 6, 1895, and this motion was not noticed until October 18th following. If respondent desired a modification of the judgment in any respect, the proper application should have been made before the going down of the remittitur. (Gray v. Palmer, 11 Cal. 341.) When the remittitur has been duly and regularly issued, without inadvertence, we have no power to recall it. This court thereupon loses jurisdiction of the cause, except in a case of mistake, or of fraud or imposition practiced upon the court, neither of which elements appear in this case. (People v. Sprague, 57 Cal. 147; Rowland v. Kreyenhagen, 24 Cal. 52.)

Motion denied.

[No. 15326. In Bank.-August 6, 1895.]

CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT, v. E. W. BURR ET AL., APPELLANTS.

LAGUNA SURVEY IN SAN FRANCISCO-DEDICATION OF STREET-DELINEATION UPON MAP-ALCALDE GRANTS-PUBLIC USER.-The delineation upon the map of the Laguna survey in San Francisco of a space corresponding to a street, with numbered lots on each side thereof, created the easement of a right of way in favor of the grantees' lots abutting thereon, and indicated an intention on the part of the town to dedicate the space as a highway.

ID. SURRENDER OF EASEMENT ABANDONMENT OF HIGHWAY.-The grantees of the lots may lose or surrender the easement created for them, and the public can also abandon or discontinue a highway after its dedication has become complete.

ID. POWER OF LEGISLATURE-REVOCATION OF STREET.-A street when dedicated becomes the property of the whole state, which by its legislature can deal with or dispose of it at its pleasure, and may revoke it in part or in whole.

ID. CHANGE OF STREETS-VAN NESS ORDINANCE-ADOPTION OF VAN NESS MAP CESSATION OF HIGHWAY.-The adoption of the Van Ness map by the Van Ness ordinance of the city of San Francisco, and its confirmation by the legislature, caused the streets delineated thereon to become open public highways, and where such map shows the change of a street from the space delineated upon the map formerly kept in the alcalde's office, known as the Laguna survey, the space designated upon the map of that survey ceased to be a public highway.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. HEBBARD, Judge.

The facts are stated in the opinion of the court.

J. C. Bates, for Appellants.

Harry T. Creswell, for Respondent.

HARRISON, J.-In 1847, Leavenworth, as alcalde of San Francisco, granted twenty-six one hundred vara lots in that portion of the pueblo which is called the Laguna survey. These lots were granted by reference

to a map kept in the alcalde's office, on which they were designated by numbers. Upon this map there is delineated a space corresponding to a street, upon one side of which are located lots 4, 7, 9, and 21, and on the other side of which are located lots 3, 6, 12, and 22. The territory thus surveyed and mapped is situated west of Larkin street, and was disconnected with the other portion of the then town of San Francisco, and the open space between the two rows of lots aforenamed was not a prolongation of any of the streets then existing, nor did it intersect or connect with any of those streets. The present action is brought to have this space declared to be an open, public street.

This delineation upon the map created the easement of a right of way in favor of the grantees' lots abutting thereon, and and indicated an intention on the part of the town to dedicate the space as a highway, and a subsequent user thereof would have been regarded as an acceptance by the public sufficient to complete the dedication. The grantees of the lots might, however, lose or surrender the easement created for them, and the public could also abandon or discontinue the highway after its dedication had been complete. The street when dedicated became the property of the whole state, which by its legislature could deal with or dispose of it at its pleasure. "That the legislature possesses competent power to vacate a street in a city; that the legislature may delegate or commit such power to the municipal authorities of the city; that its exercise by the municipal authorities is dependent on the will and subject to the control of the legislature; and that after such power has thus been committed to the municipal authorities the legislature may revoke it in part, as well as in whole, or, without an express revocation, may itself exercise it in any particular instance, are propositions about which there can be no controversy in this state. The plenary power of the legislature over the whole domain of streets is well illustrated by the decisions of