110 Cal. 408 | Cal. | 1895
James Connors died intestate in the county of Santa Clara, leaving as his heirs at law his
The two petitions came on regularly for hearing at the same time, and “the court having heard the testimony of witnesses duly sworn and examined on the part of both said petitioners,” it was ordered that the petition of J. K. Secord be denied, and that the petition of Philip Connors be granted, and that letters of administration be issued to him upon his giving a bond in the sum of three thousand dollars.
From this order petitioner Secord appealed.
Two points only are made for a reversal. They are: 1. That the order was not justified by the evidence, because it was shown thereby that Connors was incompetent to execute the trust by reason of his improvidence; 2. That no findings were filed.
Under our statute the father was entitled to be appointed administrator of the estate of his deceased son, unless he was “adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity.” (Code Civ. Proc., secs. 1365, 1369.)
In support of the first point appellant called two witnesses. P. A. Donavan testified: “ I know Philip Con
Seven other witnesses were called for respondent. One of them testified that respondent purchased from him the lot, which he now owns, some twenty years ago, and that “ I know his habits and consider him a first rate, industrious man.” Four of them testified that they had known respondent for the past five years; that they had never seen him intoxicated; saw him about town on his wagon; had only business dealings with him; and that he seemed to be an honest, sober, and industrious man. And two of them testified that they had known respondent for five years; that he came to their store to buy provisions; that they did not think they had ever seen him intoxicated; that he seemed to be an honest, sober, and industrious man, and that he always paid his bills.
Improvidence is defined to be: “ Want of care or foresight in the management of property.” (10 Am. & Eng. Ency. of Law, 321.) And in Coope v. Lowerre, 1 Barb. Ch. 45, it is said: “ The improvidence which the framers of the Revised Statutes had in contemplation, as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value by improvidence, in case administration thereof should be committed to such improvident person.”
Whether the respondent was incompetent to serve as administrator by reason of his improvidence or not was a question of fact to be determined by the court below in view of all the evidence before it, and its determination cannot be disturbed on appeal upon mere technical grounds.
It is claimed for appellant that improvidence is an attribute of character, which can only be proved or dis
We do not think this claim can be sustained. The general rule undoubtedly is as stated, that “ character is a fact which is proved by another fact—general reputation. It cannot be shown by evidence of particular and specific facts, but may be proved by negative testimony.” (3 Am. & Eng. Ency. of Law, 114.) The evidence of respondent appears to have been offered and received without any objection, and, in our opinion, it was sufficient to meet and overcome that offered by appellant. It was not alone made up of particular and specific facts, but tended directly and strongly to negative the charge made by appellant.
As to the second point, conceding, without deciding, that in a case of this kind findings are necessary, still the appellant was in no way “ aggrieved ” by the failure of the court to make findings. The rule is that the failure to find on a material issue will not warrant a reversal of the judgment, if the findings omitted must have been adverse to the appellant. (People v. Center, 66 Cal. 551; Murphy v. Bennett, 68 Cal. 528; Demartin v. Demartin, 85 Cal. 75.)
Here it is apparent that the court must have believed the witnesses for respondent, and, therefore, if findings had been made, they must have been adverse to appellant.
It follows that the order appealed from should be affirmed.
Searls, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
McFarland, J., Henshaw, J., Temple, J.