I. Tracey duly filed in the superior court her verified petition describing the Lewis street lots, setting forth the fact of the death of Bridget De Campos, and that the life estate had terminated, and asking for a decree to that effect, and that the title to one-half the property be declared vested in her. This petition was filed under section 1723, Code Civ. Proc., which provides that such petition may be filed, "and thereupon, and after such notice, by publication or otherwise, as the court may order, the court shall hear such petition, and the evidence offered in support thereof, and if, upon such hearing, it shall appear, that such life estate, of such deceased person absolutely terminated by reason of his death,

** the court shall make a decree to that effect, and thereupon a certified copy of such decree may be recorded in the office of the county recorder, and thereafter shall have the same effect as a final decree of distribution so recorded." The proceedings under this section partake of the nature of proceedings in rem. The petition is addressed to the superior court, and not the probate court, and is similar to a complaint or petition in equity. In re De Leon, 102 Cal. 541, 36 Pac. 864. After filing said petition, the court ordered notice to be given, and afterwards made a decree that the life estate had terminated, and that the undivided one-half of the whole of the real estate described in the petition had vested absolutely in petitioner. The appellant, as executor, made a motion to vacate and set aside the said decree on the ground that the same was taken against him without notice and through surprise, and that the ends of justice would be furthered by grant. ing said motion. The motion was made upon affidavits, and in said affidavits it is stated that one of the Lewis street lots was community property of said Phillips and his wife, Bridget; that a homestead upon said lot was duly selected, acknowledged, and recorded in the lifetime of both parties; and that by reason of the said homestead the lot, on the death of Phillips, vested, under the statute, absolutely in Bridget, as the surviving spouse. It is thus claimed that the lot so selected as a homestead was never any part of the assets of the estate of Phillips, and therefore the absolute property of Bridget De Campos at the time of her death, and in no way a part of the property in which she held a life estate. This claim is made for the purpose of showing merit in the application to be relieved from the decree, and, of course, cannot be passed upon in this proceeding. If the claim is true, then the homestead lot was no part of the assets of the estate of Phillips. If the court acquired jurisdiction of the interested parties by notice as prescribed by the statute, the decree is valid; otherwise not. It is evident that the proceeding, being out of the ordinary course of actions in which the summons must be personally served, and having the effect of a final decree of distribution, must not be construed to include cases ex

*

cept such as come clearly within its terms. It is more than a mere proceeding in rem, because by it the court is asked to make its decree that an estate has ceased and terminated. The result of almost every action as to property or property rights is to finally determine that a claim or alleged right to property is not valid as to one party, but is valid as to the other Its effect may be to terminate an estate that before was thought to be valid. We will measure this case by the provisions of the statute, and, when so measured, the court did not acquire jurisdiction. The statute contemplates some notice, and this notice must be to the parties who are interested in the life estate sought to be declared terminated by judicial decree. In this case appellant, as executor of the will of Bridget De Campos, deceased, was at least one of the interested parties. If the homestead lot was the absolute property of his testate, and not held for the term of her life only, it was his duty to claim the same, and protect it for her devisees or legatees. Let us then examine these proceedings as to whether any notice of any kind was given to him. The petition to terminate the life estate is entitled, "In the matter of the petition of Catherine I. Tracey, to terminate life estate created under the last will and testament of Joseph Phillips, deceased." The order directing notice recites that from the reading of the petition it appears "that said Joseph Phillips is dead; that the life estate created in and under and by virtue of the last will and testament of said deceased absolutely terminated by reason of his death." Then, after fixing a time and place for hearing the petition, it directs the clerk to give notice "of the time and place so appointed for the hearing of said petition to all persons interested in the estate of said deceased by posting notices," etc. This order, it will be seen, states that the estate created in and by virtue of the will of said deceased absolutely terminated by his death. How an estate created by his will could terminate by his death is a difficult problem. If the recital in the order is true, the life estate was born dead, as it could not be created by the will until the party making the will died, and then it absolutely terminated by his death. The notice was directed to be given to those interested in the estate of said deceased. Appellant, as executor of Bridget De Campos, was not interested in the estate of Phillips, deceased. The estate of Phillips had been closed and distributed. The notice should have been to the parties interested in the life estate of Bridget De Campos, and in the property sought to be affected by the decree. The estate of Phillips having been distributed and closed, no one thereafter had any interest in it, because there was no such estate. The notices given by the clerk by posting followed the order, and were equally defective. They referred to the life estate created under the will of Joseph Phillips, de

ceased, and notified "all persons interested in the said estate" to appear at the time and place named in the order. They contained no notice to all persons interested in the property described in the petition, nor to all persons interested in the estate of Bridget De Campos, deceased. In all cases in which the statute allows a constructive service, or in which jurisdiction may be obtained of the thing by a prescribed form of notice, in which the real party in interest had no actual notice, and did not appear or subject himself to the jurisdiction of the court, the mode of service prescribed by the statute must be strictly construed. Jordan v. Giblin, 12 Cal. 100; Cohn v. Kember, 47 Cal. 145; Forbes v. Hyde, 31 Cal. 344; Ricketson v. Richardson, 26 Cal. 149; Pearson v. Pearson, 46 Cal. 635; Heinlen v. Heilbron, 94 Cal. 636, 30 Pac. S. In this case the appellant made his motion promptly to be relieved of the decree as soon as he learned of its entry, and in less than six months thereafter. The notice had not been personally served upon him, and he brought himself within the spirit of the rule laid down in Code Civ. Proc. § 473. And where a motion of this kind is made, and the circumstances are such as to lead the court to hesitate, the better rule is to grant the application so as to secure a trial upon the merits. Wolff v. Railway, 89 Cal. 332, 26 Pac. 825; Merchants' Ad-Sign Co. v. Los Angeles Bill Posting Co., 128 Cal. 621, 61 Pac. 277. And where the court did not acquire jurisdiction by reason of an attempted constructive service which was void, the judgment was vacated upon motion, although 10 years had elapsed since its entry. People v. Pearson, 76 Cal. 400, 18 Pac. 424.

The conclusion we have reached can do no injustice. If part of the property described in the decree is the property of the estate of Bridget De Campos, and no part of the estate of Phillips, it should not be included therein. The decree as made declared that the undivided one-half of the property "is now vested in said petitioner" absolutely. While this is not an appeal from the decree, we think it proper to remark that the court is not given power under the section to declare in whom, upon termination of title, a life estate is vested absolutely. It is empowered to make a decree that the life estate of a deceased person has absolutely terminated.

The order should be reversed.

We concur: CHIPMAN, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the order is reversed.

(136 Cal. 413)

PARKER v. GREGG et al. (Sac. 846.) (Supreme Court of California. May 27, 1902.) DIVERSION OF WATER-CONFLICTING EVIDENCE-SUFFICIENCY OF COMPLAINT-FINDINGS HARMLESS ERROR.

1. Notwithstanding Code Civ. Proc. § 1835 which provides, that evidence is deemed satis

factory which ordinarily produces moral certainty or conviction in an unprejudiced mind, and that such evidence alone will justify a verdict, under section 2061, providing that in civil cases, where the evidence is contradictory, the decision must be made according to the preponderance of evidence, where the evidence on an issue of fact was substantially conflicting the finding of the trial court must stand.

2. In an action for the diversion of water the complaint alleged that the plaintiff diverted water into his ditch by "small dams." The evidence showed that the defendants had interfered with the small dams at the head of the ditch, causing the water to break out a little above, and the plaintiff had put in another dam at this break, which dam defendants tore out. The court found that the defendants had interfered with and destroyed the "dam and dams" by which the water was diverted. Held, that the finding was not objectionable on the ground that it was not supported by the, complaint.

3. Where in an action for the diversion of water the court, in its findings, referred to "the land" of the defendants, and the case was tried on the theory that they owned the land described in their answer, and through which plaintiff's ditch ran, there was a sufficient finding on the averment of defendants that they were the owners of the land.

4. Where the court, in its findings, referred to land as belonging to the defendants, and the case was tried on the theory that such was the fact, it was not error pot to find specifically on that issue, as such a finding would not have changed the result.

Department 2. Appeal from superior court, Siskiyou county; J. S. Bend, Judge. Action by Alexander Parker against J. W. Gregg and others for the diversion of water. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Affirmed.

Neil & Butler, for appellants. Tapscott, for respondent.

Gillis &

PER CURIAM. Judgment was for plaintiff in the court below, and defendants appeal from an order denying their motion for a new trial.

The respondent is, and has been for 40 years, the owner of a ditch by which he diverts, and for 40 years has continued to divert, the waters of a natural stream called the East Fork of Scott river, in the county of Siskiyou. The action was brought to recover damages, of appellants for repeated removals of respondent's dam at the head of said ditch, and to have them enjoined from a repetition of the trespass. The questions involved are mainly questions of fact, appellants contending that certain findings of the court are not justified by the evidence.

The finding of the court as to the capacity of respondent's ditch, which is attacked by appellants, cannot be disturbed. The evidence on the point was substantially conflicting; and the court was not bound to take as true the testimony of one of appellants' witnesses who swore that he had measured the ditch, and to disregard the testimony of several of respondent's witnesses who placed its capacity at a larger figure than the one given by the said wit

ness of appellants. Whatever may be the meaning of section 1835 of the Code of Civil Procedure, it is clearly modified by the subsequent section 2061, which provides that "in civil cases when the evidence

is contradictory, the decision must be made according to the preponderance of evidence"; and it is settled law that where, in such a case, the evidence on an issue of fact is fairly and substantially conflicting, the finding of the trial court must stand.

The finding that the damages were caused by the acts of appellants must also stand. There is some contention that the dam men. tioned in the complaint was not the identical one which was torn out by appellants, but this is not maintainable. It is averred in the complaint that respondent diverted the water into his ditch by "small dams," and the court found that appellants had interfered with and destroyed the "dam and dams" by which the water was diverted. It appears from the evidence that the place where the ditch tapped the stream was level and swampy, and that the stream, as one of the witnesses described it, "kind of halted," and spread out over a large space where there were bushes and small trees. and small dams had to be put in various places at different times. The court found, upon sufficient evidence, that the acts of appellants interfered with the conditions which had existed at the head of the ditch for 30 years before they went there or had acquired any interest in the adjoining land, and caused the stream to break through its banks a little above where the small dams usually were, and made it necessary for respondent to put in a dam at the break, which dam appellants tore out. The dains mentioned in the complaint were those which were necessary to keep the water diverted into the head of the ditch, and the head of the ditch had never been changed. The court also found, upon sufficient evidence, that certain acts of appellants, and not the keeping of a dam in the stream by respondent during the winter, caused a certain overflow of the ditch which appellants complain of.

There was also sufficient evidence to sustain the finding that the respondent's crops on the particular land occupied by himself were damaged to the extent of $500, with out considering damage to crops on lands occupied by his sons in which he had an Interest.

The foregoing are the main issues of fact. It is contended that a new trial should be granted because there was no finding on the averment of appellants that they were the owners of certain described lands; but the court, in various findings, refers to "the land" of appellants, and the whole case was tried on the theory that they owned the land described in their answer through which the ditch runs. Moreover, an express finding

that appellants did own such lands could in no manner have changed the result. We see no other points in the case which require notice.

The order appealed from is affirmed.

(136 Cal. 379)

HARRIS v. HARRIS et al. (Sac. 875-877.)1 (Supreme Court of California. May 20, 1902.)

TRUSTS HUSBAND AND WIFE VOID MARRIAGE SEPARATION AGREEMENT-EFFECTATTORNEYS CONFIDENTIAL COMMUNICA

TION-APPEAL-QUESTIONS CONSIDERED. 1. Plaintiff, who had contracted a marriage which was void because her husband had a wife living, testified, in an action against his heirs to establish a trust in his property, that when they were married she gave him control of a certain mine, but that she had no agreement with him. The husband worked the mine from 1873, but no great amount of gold was taken therefrom till 1880, and the evidence did not show the specific amount of gold taken therefrom, or that it more than paid working expenses, prior to 1877, in which year the husband purchased other property. The husband, from the time of his marriage to plaintiff till the purchase of the latter property, was engaged in prospecting and working other mines Held not and in dealing in mining property. sufficiently clear, satisfactory, and convincing to show that the husband at the time he acquired the property had no money other than that received in working plaintiff's mine, or that the use of the earnings of the mine by the husband created any trust relation between plaintiff and the husband.

2. A separation agreement between parties living together as husband and wife under a marriage void because the husband had a wife living contained a clause that the husband should have all the wife's interest in any property owned or claimed by the husband except a certain mine. The entire title to another mine was in the husband at the time, and the wife made no claim thereto, but stated that the husband could get a living out of it, and she made no claim thereto during the life of the husband, but consented to his borrowing money from her sons, and advised them to take a mortgage on the mine. Held, that the agreement conveyed all her interest in the mine to the husband, so as to preclude her from claiming a trust estate therein.

3. A determination by the trial court, in a suit to establish a trust in real property standing in the name of another, that the evidence is not sufficiently clear, satisfactory, or convincing to establish such trust, is conclusive on appeal.

4. The rule that an attorney cannot testify to communications by his client does not apply when such communications are made when the attorney is acting for both parties.

Department 1. Appeal from superior court, Tuolumne county; G. W. Nicol, Judge.

Suit to establish a trust by Clara A. Harris against Timothy R. Harris and others. From a decree for defendants, plaintiff ap peals. Affirmed.

J. B. Curtin and H. V. Morehouse, for appellant. A. M. Drew, F. H. Short, F. P. Otis, J. F. Rooney, and F. W. Street, for re spondents.

HARRISON, J. The plaintiff was married to one W. N. Harris at Stockton, in this state,

Rehearing denied June 20, 1902.

in October, 1873, and thereafter lived with him as his wife until March 26, 1892. At that dafe an agreement called a "separation agreement" was entered into between them, under which they lived apart for about two years, and then resumed their former relation, and continued to live together until the death of Harris, in October, 1898. Harris had been married in Georgia, in July, 1848, and when he came to California in 1850 he left his wife in Georgia, where she continued to live until her death in 1892; and also a son, John L. Harris, one of the defendants herein, the issue of that marriage, who was born in September, 1849. The plaintiff was, however, ignorant of the fact that Harris had a wife, and did not know of the existence of his son, or of the fact of his previous marriage, until after his death. At the time of her marriage to him she was the owner of the Gem mine, and also of a one-third interest in the Mazeppa mine,-two mining claims situated in Tuolumne county. For several years after their marriage Harris prospected and worked the Gem mine, and during that time took a large amount of gold therefrom. Nothing appears to have been done upon the Mazeppa mine, other than assessment work, prior to December, 1879. At that time Harris purchased from Dixon and Rodgers, two of the original locators of the mine, a twothirds interest in the mine, and received a conveyance therefor from them. In March, 1880, with the consent of the plaintiff, he relocated the mine in his own name, and on May 31, 1882, upon his application therefor, a patent for the mine was issued to him by the United States. In July, 1877, Harris purchased a mining claim of Hix and Onby, which he located in 1885 in his own name as the Junietta mine. By the aforesaid separation agreement Harris conveyed to the plaintiff all of his interest in the Gem mine and in certain other property, and the plaintiff conveyed to Harris all her claim or right "to any and all other property owned or claimed by him, or any other property that he might thereafter acquire or have at the time of his decease." During the year prior to his death Harris made contracts for the sale of the Mazeppa and the Junietta mines, to be paid for in installments. A portion of the purchase price under these contracts was paid to him in his lifetime, and the remainder to his executor after his death. The plaintiff brought this action against his heirs and legatees and the executor of his will to have it adjudged and declared that she was the owner of the Mazeppa and Junietta mines, and that Harris held the legal title thereto in trust for her, and that the executor pay over to her the money received by him by virtue of the contracts of Harris for their sale. In the first count of the complaint the plaintiff alleges her ownership of an undivided third of the Mazeppa mine, and an agreement by Harris, who held the legal

title to the other two-thirds, that upon receiving the patent therefor in his own name he would hold in trust for her one undivided third of said mine, and upon any sale thereof would pay to her one-third of the purchase price received therefor. In the second count of her complaint she alleges that she was the owner of an undivided third of the Mazeppa mine at the time of her marriage to Harris, and that she furnished the money with which he purchased from Dixon and Rodgers the other two-thirds of said mine, and that he purchased the same from them, and took the legal title thereto in his own name, at her direction and request; that thereby a trust resulted in her favor for said two-thirds interest; that the relocation of the mine in March, 1880, and the issuance of a patent therefor in his own name, was made in pursuance of his statements and representations to her that he would hold the same in trust for her, and would manage the same at her direction and for her benefit; that she at all times believed that her marriage to him was valid and binding, and relied upon his statements and representations as those of a husband; that she furnished him from her sole and separate property all the moneys used by him in relocating said mine and paying the expenses of procuring the patent therefor; that by reason of these facts a trust resulted in her favor for the whole of said mining claim, and that Harris acknowledged the existence of the trust, and did not repudiate the same until shortly before his death. Similar allegations are made in regard to the purchase by him of the Junietta mine, from which the plaintiff claims a resulting trust in her favor for the whole of that mine. The court found that for many years prior to the time of the relocation by Harris of the Mazeppa mine,-March 11, 1880,-and until the 26th day of March, 1892, the plaintiff was the owner of an undivided one-third of said mining claim, and that from and after obtaining the patent for the mine until March 26, 1892, Harris was the owner in his own right of a two-thirds part of said mine, and held the remaining third in trust for the plaintiff; that the said relocation of the mine by Harris, and his procurement of a patent therefor in his own name, was, as to two-thirds of the mine, for his own use and benefit, and for the use and benefit of no other person; that on March 26, 1892, the plaintiff conveyed her interest in said mine to Harris, and that Harris was thereafter, until the time of his death, the sole owner of the entire mine; that the plaintiff was never interested, either as owner or otherwise, in the Junietta mine, but that Harris at the time of his death, and for many years prior thereto, was its sole owner. The court found against the allegations of the plaintiff that Harris agreed with her to hold any of said property in trust for her, or that he did hold any in trust for her, except as to the one-third interest in the Ma