this court in the litigation respecting Kearny, Second, and Beale streets in the city of San Francisco." v. San Francisco Orphan Asylum, 48 Cal. 492.)

(Polack

The Van Ness ordinance, which was passed in 1855, provided for a plan for the location and dimensions of streets to be laid out within the city limits west of Larkin street and southwest of Johnston (now Ninth) street, and, in pursuance of these provisions, the plan or map known as the Van Ness map was prepared, and by ordinance, October 16, 1856, "declared to be the plan of the city in respect to the location and establishment of streets and avenues, and the reservations of squares and lots for public purposes, in that portion of the then incorporated limits of said city lying west of Larkin and southwest of Johnston streets." This ordinance was ratified and confirmed by an act of the legislature, approved March 11, 1858 (Stats. 1858, p. 52), and the streets delineated upon the Van Ness map became thereby open, public highways. (Sawyer v. San Francisco, 50 Cal. 370.) The space that had been delineated as a street upon the map of the Laguna survey does not appear upon this map, but in lieu thereof there are other streets forming continuations of streets then existing, and running at a different angle with Larkin street. In Brook v. Horton, 68 Cal. 555, it was held that certain streets that had been dedicated as public highways by the adoption of the Van Ness map were superseded by streets that were laid out on the city engineer's map, which was prepared under the acts of 1862 and 1864 (Stats. 1862, p. 407; Stats. 1863-64, p. 460), that the effect of the delineation of the streets upon the engineer's map under the provisions of these statutes was to discontinue and abandon the former streets. Under the principles of that case it must be held that by the adoption of the Van Ness map, and its confirmation by the legislature, the legislature, the above-described space the Laguna survey map ceased to be a public high

upon

way. (See, also, Seaman v. Hicks, 3 Paige, 65; Commonwealth v. Boston etc. R. R. Co., 150 Mass. 176.) The judgment is reversed.

MCFARLAND, J., BEATTY, J., VAN FLEET, J., and HENSHAW, J., concurred.

[No. 15732. In Bank.-August 6, 1895.]

ESTATE OF C. C. GARRITY, DECEASED. ELIZABETH BUCKLEY, APPELLANT.

ESTATES OF DECEASED PERSONS-FAMILY ALLOWANCE-HOMESTEAD -JURISDICTION.-The right of the family to an allowance for its support is not dependent nor contingent upon a previous order setting apart a homestead for the use of the family, and section 1466 of the Code of Civil Procedure confers upon the court the power, in its discretion, to make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family during the progress of the settlement of the estate, and its jurisdiction is not affected by the fact that the inventory shows that there was property of the estate out of which a homestead might be set apart to the widow. ID.-PETITION BY EXECUTOR FOR FAMILY ALLOWANCE-RELATIONSHIP TO WIDOW. It is not requisite that the widow should herself petition for a family allowance; but the order may be made upon a petition by any one in her behalf, and the fact that the executor is also her son should not prevent a petition made by him in her behalf from receiving consideration by the court. ID.-FINAL ACCOUNT OF EXECUTOR-DISPOSITION OF PROPERTY-UNAPPRAISED EVIDENCE OF VALUE-APPRAISEMENT.-Where an executor has disposed of property, which was not included in the appraisement of the estate, the court is authorized to take evidence of its value for the purpose of ascertaining the amount with which the executor should be charged, and is not required to appoint an appraiser for that purpose. ID.-DISTRIBUTION-LIFE ESTATE IN PERSONAL PROPERTY-SECURITY -INTENTION OF TESTATOR.-Where the will of a testator discloses his intention that his widow shall have the full enjoyment during her lifetime of personal property bequeathed to her, without being required to give any security for its preservation, she is entitled to have the possession of the personal property in which she is given a life estate distributed directly to her, to be held during the term of her life. ID.-PROBATE JURISDICTION-CONVERSION OF PROPERTY FOR INVESTMENT-SECURITY.-The superior court is not authorized in the exercise of its probate jurisdiction to direct a conversion of the testa

tor's property into securities to be invested so as to allow only the income thereof to a life tenant, nor to require the life tenant to give any security before receiving the legacy.

ID.-EQUITY JURISDICTION-IMPAIRMENT OF ESTATE BY LIFE TENANT. -Where the legatees in remainder make it appear that there is danger that the estate will be impaired or suffer waste if left in the possession of the life tenant without security, and it is necessary that their rights in the property shall be protected or preserved, they must seek relief from the equity arm of the superior court in order to demand that security be given.

ID. POWER OF TESTATOR-APPOINTMENT OF LIFE TENANT AS TRUSTEE. The testator has the right to make the life tenant trustee of the property bequeathed without requiring any security from him; and very slight indications in the will will be construed as showing that the testator intended the life tenant, rather than the executor, to be the trustee, subject to the general rules applicable to the obligations of a trustee to his cestui que trust. ID.-CONSTRUCTION OF WILL-INTENTION OF TESTATOR-DEVISE OF RESIDUE RIGHTS OF WIDOW AS LIFE TENANT.-Where by the terms of the will the testator bequeathed to his widow for the term of her natural life all of his property of every character and description, and gave to the children the rest, residue, and remainder of the estate and property remaining after the termination of the life estate, without giving to them the same property and estate by way of remainder, the will must be construed as showing the intention of the testator that his widow should have the possession of the property bequeathed to her during life, without being required to give any security for its preservation, and that it was within his contemplation that some of the property received by her might not be in existence at her death to be received by the children. ID.-DECREE OF DISTRIBUTION-PROVISO-MODIFICATION PEAL. A decree of distribution is intended to be a final distribution of the estate, and should not be made contingent upon the establishment at some future time of the existence of conditions iaserted in a proviso, and upon appeal such decree will be directed to be modified by striking therefrom such proviso.

UPON AP

APPEAL from a decree of distribution of the Superior Court of Contra Costa County and from orders for a family allowance and settling the final account of the executor JOSEPH P. JONES, Judge.

The facts are stated in the opinion of the court.

Reddy, Campbell & Metson, for Appellant.

The court had no jurisdiction to make the family allowance, it not appearing that the homestead had been set apart and was insufficient for the support of

the widow. (Code Civ. Proc., secs. 1465, 1466; Estate of Lux, 100 Cal. 603.) The widow is not entitled to the possession of the entire fund as life tenant, but it must be invested for the benefit of the remaindermen. (Howe v. Earl of Dartmouth, 7 Ves. 137; Livingston v. Murray, 68 N. Y. 485, 492; Howard v. Howard, 16 N. J. Eq. 486; Covenhoven v. Shuler, 2 Paige, 132; 21 Am. Dec. 73; Healey v. Toppan, 45 N. H. 243, 260; 86 Am. Dec. 159; Security Co. v. Hardenburgh, 53 Conn. 169.)

John B. Mhoon, for Executor, Respondent.

The court had jurisdiction to make an order for family allowance on the petition of any one, or of its own motion. (Code Civ. Proc., secs. 1464-66.) The rule in Lord Dartmouth's case has been abrogated by the modern decisions. (1 Story's Equity, sec. 604; 2 Redfield on Wills, sec. 153; Thursby v. Thursby, L. R. 19 Eq. 395.) The widow cannot in this proceeding be deprived of her right to have, to hold, and to enjoy the life estate, nor will appellant's rights in what remains upon the determination of the life estate be destroyed or endangered by any acts of the life tenant. (Rowe v. White, 16 N. J. Eq. 411; 84 Am. Dec. 169; Goudie v. Johnston, 109 Ind. 427; Harbison v. James, 90 Mo. 411; Anderson v. Hall, 80 Ky. 91; Howard v. Carusi, 109 U. S. 725; Smith v. Bell, 6 Pet. 68; Healey v. Toppan, 45 N. H. 243; 86 Am. Dec. 159.) The widow did not waive her right to succeed to half the community property by taking her bequest under the will. (Estate of Silvey, 42 Cal. 210; King v. Lagrange, 50 Cal. 328.)

THE COURT.-After a full consideration of this cause in Bank we are satisfied with the conclusion reached in Department, and with the opinion of Mr. Justice Harrison therein delivered. In accordance with said opinion the superior court is directed to modify the decree of distribution by striking therefrom the following proviso: "Provided that the sum of one hundred dollars of said distribution shall have been heretofore reCVIII. Cal.-30

ceived by Thomas Garrity, and that the sum of fifteen dollars has been received by James Garrity"; and, as so modified, the decree is affirmed. The orders for a family allowance and settling the account are also affirmed; and the costs of this appeal are to be borne by appellant.

The following is the opinion of Mr. Justice Harrison above referred to, which was rendered in Department One, December 14, 1894:

HARRISON, J.-C. C. Garrity died testate June 4, 1890. His will was admitted to probate in the superior court of Contra Costa county, and letters testamentary thereon issued to James Garrity, November 24, 1890; and on January 7, 1891, the executor filed an inventory of the estate, which was appraised at $24.681.36. By his will the testator made certain legacies amounting to $2,500, and gave to his wife "all and singular my property, real, personal, and mixed, of every kind and character, wheresoever situated, to have, to hold, and to enjoy for the term of her natural life only, and not otherwise"; and in a subsequent item gave to three of his children, of whom the appellant is one, "all and singular, the rest, residue, and remainder of my estate and property, real, personal, and mixed, of every kind and character, and wheresoever situated, remaining upon the termination of the life estate herein before granted and bequeathed to my said wife." The entire estate was community property, and, after paying the debts and expenses of administration, there remained in the hands of the executor certain real estate, which was appraised in the inventory at $13,040; certain personal property, consisting chiefly of farming implements, appraised at $188; and the sum of $8,068.74 in money, which was on deposit in the bank at the testator's death. January 23, 1892, the executor filed a supplemental inventory, setting forth that he had received from the testator two watches and a gold chain, and had disposed of them in accordance with certain instruc