missible as showing the relation of the parties.

3. It is urged as error that the witness McPiarmid was permitted to testify that he had a conversation with the witness Gengo. The conversation was not asked for, nor was it narrated, any part of it. What Gengo told the officer, we do not know. All we know is that, immediately after Gengo saw defendant passing, he spoke to the officer, and the officer followed defendant and arrested him. We can discover no possible prejudice to defendant in this circumstance, nor can we see that it was error to show it. The jury must have supposed the officer got his cue somehow, and although it was, perhaps, immaterial how he got it, the evidence could not have affected the minds of the jury to defendant's prejudice.

4. It is urged as error that testimony was admitted to show the condition of Clark's vest after the alleged larceny took place, the defendant not being present at the time. Gengo testified that, as Clark and defendant passed him, he noticed the watch chain, and also noticed that Clark's vest was buttoned. Two minutes later he saw defendant going away from Clark, and he then noticed that Clark's vest was unbuttoned, and the watch and chain were gone. He had seen defendant with his hands on Clark's vest as he passed. These circumstances were all so nearly connected in point of time-practically simultaneous-that they were res gestæ. The offense was committed on the person of Clark, and we think the condition of his vest, in which rested the watch, was as admissible, as his condition as to sobriety or insensibility to what was going on around him.

The judgment and order should be affirmed.

KIPPEN et al. v. OLLASON. (S. F. 2,056.)1 (Supreme Court of California. June 20, 1902.) VICIOUS DOGS-ACTION FOR INJURIES-EVI

DENCE-SUFFICIENCY-MISJOINDER
OF PARTIES-WAIVER.

1. In an action for injuries occasioned to plaintiff's person by the bite of defendant's dog, defendant himself testified that he had seen the dog bite a third party. Another witness testified that the dog had attacked her. Defendant's daughter testified that the witness was coming to her house, and was in the front yard, at the time. Plaintiff was going out with defendant's daughter, and had waited outside the yard, knowing the dog was vicious, but it broke its chain and bit her on the leg. Held, that a verdict for plaintiff was sustained.

2. In an action by husband and wife for injuries sustained by the wife alone, where the complaint showed that at the time they were Inflicted she was a single woman, defendant's failure to raise by demurrer the question of misjoinder of parties was a waiver thereof.

Rehearing denied July 11, 1902.

Department 2. Appeal from superior court, Santa Cruz county; Lucas F. Smith, Judge. Action by Julia Kippen and husband against Lawrence Ollason. Judgment for plaintiffs, and defendant appeals. Affirmed.

Joseph H. Skirm, for appellant. Carl E. Lindsay, for respondents.

HENSHAW, J. The action was to recover for injuries occasioned to the person of plaintiff by the bite of a dog owned by defendant. The propositions to be established in such case are: First, that the animal was vicious; and, second, that the owner knew it. Both of these propositions were, upon sufficient evidence, proved to the satisfaction of the jury. It was shown by defendant's own testimony, as well as by the testimony of others, that previous to this occurrence the dog had attacked one Herbert Burton, biting him, tearing his trousers, and injuring his leg. Defendant testifies, "I saw him when he did it, and I paid him for the pants." Burton had expostulated with the owner, and told him he ought to kill the dog. The dog likewise attacked another witness, Mrs. Horace Coos, upon the premises of the defendant, and tore her clothes. Defendant's daughter testified: "Mrs. Coos was coming to the house. She was in the front yard. I did not see her. I heard her child crying. I opened the door, and she was standing near the dog." In the case at bar the plaintiff stood in the county road in front of defendant's house, and called to the defendant's daughter, with whom she was going blackberrying. She did not enter the yard, because she knew the dog was vicious. The dog was tied in the yard near the house, broke his tether, rushed out into the road, attacked the plaintiff, and bit her upon the leg, injuring her severely. The evidence justified the verdict. The instructions were within the law as laid down in Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269; Finney v. Curtis, 78 Cal. 501, 21 Pac. 120; Clowdis v. Irrigation Co., 118 Cal. 320, 50 Pac. 373, 62 Am. St. Rep. 238. The complaint shows that at the time, the damages were inflicted upon plaintiff she was a single woman. Before the commencement of the action she married, and at the time of the commencement of the action was the wife of Hugh Kippen. The action is prosecuted in the name of herself and her husband. It is insisted that the right of action was the separate property of the wife, and that the judgment, which is jointly in favor of herself and her husband, cannot stand. It is plain that defendant cannot be injured by the fact that the judgment is joint, since its satisfaction relieves him of all liability upon the cause of action. But the complaint sufficiently discloses the facts, and it was open to defendant to raise the question of misjoinder of parties by demurrer. Having failed so to do, his contention, which amounts

to no more than a ground of special demurrer, will not now be considered. Gale v. Water Co., 44 Cal. 43; Roberts v. Eldred, 73 Cal. 394, 15 Pac. 16.

The judgment and order appealed from are affirmed.

We concur: MCFARLAND, J.; TEMPLE, J.

(136 Cal. 558)

In re MOTZ'S ESTATE. (L. A. 1,139.) MOTZ v. MOTZ.

(Supreme Court of California. June 14, 1902.) WILLS-EXECUTION-SOUNDNESS OF MINDUNDUE INFLUENCE NEW TRIAL DISCRETION OF COURT-SPECIFICATIONS OF ERROR -SUFFICIENCY.

1. The burden is on a contestant in a will case to prove allegations as to undue influence and unsoundness of mind.

2. On an issue as to the due execution and subscribing of a will, one of the subscribing witnesses testified that he and the other witness signed after testator. The other witness testified that the name of the first witness was not on the will when he signed it; that he did not think testator's name was on; that he first commenced to entertain the belief in November, 1900. The will was dated June 1. 1897. Witness admitted that he told a third party in August, 1900, that he thought the other names were on the will when he signed, etc. The jury found that the will was not duly executed. Held not an abuse of discretion to grant a new trial.

3. Specifications of error that evidence was insufficient to sustain a finding that a will was not subscribed, executed, attested, made, and published by testator and the subscribing witness; that it was not executed by testator; that it was not made and published by him; that the execution was not in the presence of the subscribing witnesses.-were sufficient.

4. Where the greater number of witnesses in a will case testified that testator was of sound mind, it was not an abuse of discretion for the court to set aside a finding that he was of unsound mind.

5. On an issue whether a will leaving all of testator's property to his wife was obtained by undue influence on her part, one of the subscribing witnesses testified that testator came into his office alone, and asked him to write the will; giving him a memorandum, and not indicating in any way that he was being coerced. The wife was not present. There was no evidence that she had ever asked him to make a will. A washerwoman testified as to quarrels between husband and wife, and said the wife was "boss." and others testified that he said she wanted all his property, etc. Held not an abuse of discretion to set aside a finding of undue influence.

Commissioners' decision. Department 2. Appeal from superior court, San Luis Obispo county; E. P. Unangst, Judge.

Petition by Kate Motz for the probate of the will of Henry Motz, deceased. Michael Motz filed a contest, and judgment was rendered denying probate. From an order granting a new trial, contestant appeals. Aflirmed.

William Shipsey and F. A. Dorn, for appellant. Albert Nelson and W. H. Spencer, for respondent.

COOPER, C. Henry Motz died in July, 1900, leaving by will his property to his wife, who is the proponent of the will, and respondent here. The appellant, who is a brother of deceased, filed a contest in which he alleged that the will was not properly executed, and that at the time of its purported execution deceased was acting under fraud and undue influence, and was not of sound and disposing mind. The respondent denied the allegations. A jury was impaneled to try the issues so raised, and returned a verdict in favor of appellant on each material issue. Findings were filed adopting the special findings of the jury, and a judgment accordingly entered denying the probate of the will. The court, on motion of respondent, granted a new trial, and this appeal is from said order. The grounds, upon which the new trial was granted, are not stated in the order, but we infer from the briefs that it was granted upon the insufficiency of the evidence to support the findings of the jury. It is well settled in this state that, though the evidence is conflicting, if the judge of the trial court is satisfied that the verdict is contrary to the weight of the evidence, it is his duty to grant a new trial, and that the motion in such case is addressed to the sound legal discretion of the court, and will be upheld here unless it appears that there was a manifest abuse of such discretion. Bjorman v. Redwood Co., 92 Cal. 501, 28 Pac. 591, and cases cited; Condee v. Gyger, 126 Cal. 547, 59 Pac. 26; Byxbee v. Dewey, 128 Cal. 326, 60 Pac. 847. The burden was upon contestant to prove the allegations as to undue influence and unsoundness of mind. We have carefully examined the evidence, bearing the above principles in mind, and we do not think there was any abuse of discretion in granting the order. As to the due execution and subscribing the will: The witness Fitzgerald testified that he wrote the will at the request of deceased; that, after it was written, deceased signed it in the presence of witness and one Isola, the other subscribing witness; that the matter was explained to Isola, and then both witnesses subscribed the will as witnesses at the request of deceased. It is not seriously contended that the testimony of Fitzgerald was not sufficient to show the due execution of the will, but it is said in appellant's brief, "Proponent claims that Fitzgerald's testimony is the true version of what took place, but the jury evidently disbelieved him and believed Isola." If the judge of the court below did not believe Isola and did believe Fitzgerald, it was his duty to set aside the verdict as to this finding. Isola testified, as a subscribing witness, that the name of Fitzgerald was not on the will when he (Isola) signed it, that he did not believe that the name of deceased was on the will when he signed it, and that he first commenced to entertain this belief November 29, 1900. The will was dated June 1, 1897. Isola admitted in cross

closely interwoven and connected with each other. It is a matter of common knowledge that a person in declining health, whose body is weakened and emaciated by disease, is, to a more or less degree, impaired in his mind. The strength of will, the quickness of apprehension, and the reasoning powers become impaired as the body becomes enfeebled. In such case the testator is peculiarly exposed to the secret machinations and importunities of designing persons, who, in the guise of love and friendship, have surrounded him and ad

It is claimed that the specifications of insufficiency of evidence as to the finding that the will was not duly executed are insufficient as to the probative fact of acknowledgment in the presence of the witnesses, and as to the fact that the will was subscribed in their presence. The specifications of particulars in which the evidence is insufficient are 20 in number, and point to almost every probative fact. It is specified that the evidence is insufficient to prove or establish that the will was not subscribed, executed, attested, made, and published by Motz and the subscribing witnesses. That it is insufficient to establish that the will was not executed by deceased; that it was not made and published by deceased; that the execution was not in the presence of said subscribing witnesses. The testimony appears to be all in the record. The specifications fairly notified the appellant of the contention of the respondent, and were sufficient, within the rule as stated in the late case of Type Founders' Co. v. Packer, 130 Cal. 461, 62 Pac. 744. It is there said: "Whenever there is a reasonably successful effort to state the particulars, and they are such as may have been sufficient to inform the opposing counsel and the court of the grounds, and the trial court has entertained and passed upon the motion, in my opinion this court ought not to refuse to consider the case on appeal, and especially where, as in this case, the transcript shows that all the evidence has been brought up."

2. As to the findings that the will was executed under undue influence, and that deceased was not of sound mind at the time of the execution, they may be considered together. In fact, the mental and physical condition of the testator at and about the time of the execution of a will is such an important factor in determining whether or not the will was that of the testator, or an instrument procured by coercion and fraud, that the two questions are kindred, and very

have gradually ebbed away. The soundness of mind required for making a will has relation to the act of the testator in making final disposition of his property as he desires. Although feeble in health, suffering under disease, aged, and infirm, the testator, if of sound mind with reference to the disposition of his property, may make a will. If he is able to understand and carry in mind the nature and situation of his property, and his relations to his relatives and those around him, with clear remembrance as to those in whom, and those things in which, he has been mostly interested, capable of understanding the act he is doing, and the relation in which he stands to the objects of his bounty, free from any delusion, the effect of disease, which might lead him to dispose of his property otherwise than he would if he knew and understood what he was doing, he has the capacity to make his will. Whitney v. Twombly, 136 Mass. 147. The testimony in this record as to the soundness of mind of deceased is conflicting. The greater number of witnesses testified that deceased was of sound mind. We cannot say that the judge below did not properly exercise his discretion in setting aside the finding that the deceased was of unsound mind. Undue influence, if such as to compel or procure the testator to do that which it was not his own will to do, and which procures an instrument which is not the free and expressed intention of the testator, will vitiate the will. The influence must be undue influence in order to vitiate the instrument. Influences of different kinds surround every rational being, and operate necessarily in determining his course of conduct. The influence of love or duty prompts a man to provide for his wife and his children and other near relatives. The influence of pity often prompts a provision for some unfortunate friend. The influence of education may prompt a bequest to some institution of learning; or of religion, to some church for charitable purposes. The kind of undue influence that will destroy the instrument must be such as in effect destroyed the testator's free agency, and substituted for his own another person's will. As said by this court in Re McDevitt, 95 Cal. 33, 30 Pac. 106, "Evidence must be produced that pressure was brought to bear directly upon the testamentary act." In Re Langford's Estate, 108

tion of the contract has expired, and the work has not been performed, the contract ceases to have any vitality, and jurisdiction to extend it or to levy an assessment thereon becomes extinct." The proportional assessment in question was therefore void, and the judgment appealed from is affirmed.

We concur: MCFARLAND, J.; TEMPLE, J.

(139 Cal. 480)

DAUBERT v. WESTERN MEAT CO. et al. (S. F. 2,275.)

(Supreme Court of California. June 20, 1902.)
WRONGFUL DEATH-JUDGMENT FOR WIDOW-
BAR TO SUIT BY CHILD EN
VENTRE SA MERE.

Code Civ. Proc. § 377, provides that an action for wrongful death may be brought either by the heirs or the personal representatives of the deceased. A widow recovered judgment for the wrongful killing of her husband. Held to bar a subsequent action for the same wrong, brought by a child thereafter born to her, but who, at the time of the judgment, was en ventre sa mere.

Department 2. Appeal from superior court, city and county of San Francisco.

Action by Olga R. J. Daubert, a minor, by her guardian ad litem, against the Western Meat Company and Annie T. Daubert. Judgment for defendants, and plaintiff appeals. Affirmed.

Wm. J. Herrin, for appellant. C. H. Wilson (Jesse W. Lilienthal, of counsel), for respondents.

MCFARLAND, J. A demurrer to the complaint was sustained in the court below and judgment rendered for defendants. Plaintiff appeals from the judgment.

The demurrer was properly sustained, and the judgment is right. The complaint shows these facts: The father of appellant, Otto Daubert, was killed by the alleged negligence of the Western Meat Company, defendant. Afterwards the defendant herein Annie T. Daubert, widow of said Otto, brought an action, as his heir, against said meat company, to recover damages for his death, under section 377 of the Code of Civil Procedure, and in said action she recovered a judgment, which was entered March 4, 1898, against said company, for $5,000, which judgment was afterwards, upon appeal by the defendant therein, affirmed by this court. At the time of the death of Otto, at the time of the commencement of the said action by his widow, and at the time of the rendition and entry of the judgment therein, the present plaintiff was not in existence, being at all said times en ventre sa mere, and a part of her mother. After the entry of the said judgment in favor of the mother, the plaintiff herein was born, and this present action was commenced in her name by her guardian to recover another judgment against the meat company for the death of said Otto. Annie

T. Daubert was made a defendant herein because she refused to join with plaintiff. The former judgment in favor of the mother is a bar to the present action. The action is statutory. The provision of said section 377 is that "an action" may be brought either by the heirs or the personal representative of the deceased, and it has been held that-at least, as between the heirs and the personal representative "but one action is permitted." Monroe v. Reclamation Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248. We are not concerned here with questions which might arise. where an action was brought by only one or two of several existing heirs,-whether, in such case, a suit by some of the heirs would bar a subsequent suit by others, or whether the latter would be confined to their right of contribution, or what the duty of a defendant would be where it appeared from the complaint that there were other heirs not joined as plaintiff, or whether the Code allows a defendant, under any circumstances, to be harassed by more than one suit by an heir. In the case at bar it appears from the complaint that at the time when the widow commenced her action and recovered judgment she was the only heir of the deceased; and, that being so, her judgment was clearly a bar to another action. There was no other heir entitled to bring the action, or be joined with her as plaintiff, and she herself had all the right given by the Code to "heirs." The defendant in that action could do nothing more than defend on the merits. It is not necessary, therefore, to follow counsel in their discussion of the question whether a posthumous child can, under any circumstances, recover for the death of its father occurring before its birth, and when it was only a part of her mother, and not a human being or person.

The judgment is affirmed.

We concur: HENSHAW, J.; TEMPLE, J.

(136 Cal. 588)

STORER et al. v. AUSTIN. (S. F. 2,199.) (Supreme Court of California. June 19, 1902.) ACTION FOR BREACH OF COVENANTS-GENERAL DEMURRER.

A general demurrer to the complaint in an action for the breach of two separate and distinct covenants in a contract should not be sustained where the cause of action for the breach of one of the covenants is well stated, though the action for the breach of the other is barred by limitations.

Department 2. Appeal from superior court, Santa Clara county; A. S. Kittredge, Judge. Action by George L. Storer and another against Paul P. Austin. Judgment for defendant, and plaintiffs appeal. Reversed.

John Reynolds, for appellants. John E. Richards, for respondent.

HENSHAW, J. Defendant's demurrer to plaintiffs' third amended complaint was sus