*1 to file permission complaint. refusal the third amended plaintiff’s voluntary- after the Application to file it made was against prejudice Chandler’s administra- dismissal with entry judgment. and the There trix, and after trial showing op- entitled to further plaintiff is no present action. portunity plead in the affirmed. order are judgment and the J., Peters, pro Traynor, J. J., Carter, J., Edmonds, tern., concurred. denied March rehearing petition for
Appellant’s 1943. Feb. In Bank. 1943.] A. 17928. No.
[L. PERKINS, LIL- Estate of ELLA WALLACE Deceased. MIDDLEBROOK, Administratrix, etc., Ap- LIAN Respondent. PERKINS, CLIFFORD L. pellant, v. *2 Appellant. George Appell Harry A. Mock for C. Hartke B. for Bespondent. H. and Freeman Brant respond- EDMONDS, probate J.—The court overruled the objections petition ent’s the estate distribution of Ella Wallace that he is judgment Perkins and entered any part on the re- Thereafter, entitled to of her estate. *3 judg- spondent’s trial, a motion for it entered another new ment decedent’s which ordered distribution of all of the estate, except $4,313, judgment followed to him. This terms findings and “modified con- “modified fact” ’’ appeal of law. The here notice of upon clusions case is a by of” Middlebrook, “Lillian of the estate administratrix reciting modified Perkins, appeals Mrs. from the she that portion distribu- judgment, except that of which orders it “from $4,313 sisters, tion herself of the to and her two granted estate.” motion for trial in said certain new ato appears appeal From is directed this notice following the hear- by probate minute order made court respondent’s motion. ing of the of the for the character question
The decision concerns all respondent claims left Mrs. Perkins. The of her deceased husband separate property as her estate judg- By by gift from him. its second acquired which she contention respondent's probate ment court sustained the $4,313, at valued except portion her a as all by bequest. come to her which had leaving intestate this state Wallace Perkins died Ella Franklin, Middlebrook, Dunlap Bose sisters, three Lillian Forty-two her survivors. Chapman, sole and Jessie W. years before, and, prior she had married Wallace T. Perkins 1931, they to his death in State of New York. resided marriage. Perkins, There were children L. no Clifford prior respondent, is the son of Wallace a T. Perkins marriage.
Mr. Perkins had in 1897. then in the remarried He was banking In 1904, business in re- Denver. he and his wife York, moved New where he became executive officer large banks no there. The record includes one any property evidence he had either when he married Ella W. Perkins when became residents of New York. testimony he there a But shows after went suc- bought banker he life in a cessful insurance and also stock representing corporations. number The certificates stock of his were either issued his name or the name Perkins secretary expressed “When Mr. wife. As his it: purchase some holdings, his either own he would a transfer Ella, for he ask for in smaller amounts or would name bought, his or division of the that he some amount smaller amount in hers.” during appears salary It this time the of Mr. Perkins $40,000 per year and that his income from dividends and investments amounted to as much more. salary His representing and the checks checks his income from other deposited in sources were account from bank which he paid living expenses both his the securities which he bought from He procured $90,000 time time. insurance of upon policies representing his life. this insurance named beneficiary $30,000, his wife as his son as the bene- ficiary of the same amount and a friend as beneficiary insurance, $10,000 remainder. Of this was obtained policy group under a issued the bank of which Mr. Per- One-half of premiums was an officer. the group kins on policy paid by bank; all of premiums were the other paid were' Mr. Perkins from his income.
Shortly husband, after of her the death Mrs. Perkins came *4 bringing $19,000 with her about California cash and some bonds. is stock and There evidence to the effect that Angeles resident of a in- while a Los she made number of vestments. She had inherited in 1933 $765.01 $3,548.15. she legacy received a Following Perkins, Lillian the death of Mrs. Middlebrook of her named as administratrix due time was estate. together account, final filed her first and the administratrix to herself of the estate distribution petition with a for objections respondent written her filed sisters. The two under estate claiming entire the petition distribution, the for as the of the Probate Code hearing a Upon the. spouse. predeceased Mrs. Perkins’ dis- respondent and decreed probate against court the ruled was appeal No the tribution to the three decedent. sisters distributed taken administratrix from this decree and the her procured terms and the estate accordance with its discharge. statutory therefor, respondent
Within the the time moved grant Upon the court to a new trial. the submission of findings motion, the con- court filed “modified of fact and reciting clusions law” Ella W. the entire estate of Perkins, except separate property her $4,313, the sum of acquired by gift from As T. Perkins. a conclusion Wallace of law the all respondent court that the is entitled to found of the except judgment” estate that amount. A “modified thereupon accordance entered. with this decision was
The appellant presents grounds for re- points several judg- versal of granting the order a trial the new and of ment. First, contends, proceed- she the nature of since ings probate heirship before the was to determine court respondent, limited to should have been order only A point issue. appeal second is that is remedy distribution, one dissatisfied a decree of with a unau- a motion for trial after such decree new that, improper. thorized as- third contention is Her suming the motion failure proper, for a new trial was comply requirement the court to of section with the of the granting Civil the order Procedure that upon ground insufficiency new trial evidence of the specify writing, ground must so for reversal judgment. money re- Finally, appellant urges upon ceived Ella proceeds W. Perkins of insurance as the mean- gift life of her husband was not a to her within ing of section 229 of connection the Probate Code. In this she California asserts that Perkins to Mrs. removal change money did legal which character paid to her New York. respondent position takes that an administratrix party aggrieved
is not a present judgment, hence the *5 appeal argues Upon merits, be dismissed. the he should entirely powers granting the court acted within its in the modifying findings judg- motion for a trial new ment to the the the governing accord with evidence and law rights of the parties.
Considering
respondent’s
first the
contention that the
appeal
dismissed,
should be
the record shows that
it was
taken by
Middlebrook,
“Lillian
administratrix of the estate
Although
of” Mrs. Perkins.
it is a fundamental principle
may
that an administratrix
appeal
from a decree of dis
tribution,
court, looking
this
to the interests of
parties
the
litigation
primary importance,
as of
very liberally
has
a notice as
in
designation
construed such
one which the
may
descriptio personae.
administratrix
be considered as
(Estate
Strong,
Turning
points urged by
appellant,
to the
proceeding
purpose
probate
statement
of the
in the
heirship
court was to determine the
respondent
objections
In
petition
distribution,
incorrect.
his
for
alleged
regarding
parentage
the facts
he
his
and “that
. . Ella
separate
entire estate of
.
Wallace Perkins was the
property of
T. Perkins .
. . . Wallace
. . and came to . . .
by
bequest
gift, descent or
from . .
An
.
[her]
[him].”
swering
objections
these
the administratrix admitted the re
respondent,
lationship
specifically
but she
denied that
at
owned
Perkins
time of her
Mrs.
death
Perkins,
of Mr.
was the
it came
by gift,
bequest.
to his
descent
The issues, therefore,
wife
allegations
these
presented
determination
concern
legal
only
character of
owned
Mrs.
the time of her death.
Perkins at
point
concerning the
raised
motion for a new
requires
1231 of
trial
a construction
the Probate
“A
Code,
probate
which reads:
motion for
trial
new
proceedings
only
wills,
can be made
cases of contests of
probate,
proceedings
either
or after
to determine
before
heirship
estates,
in those cases
and interests
where
sought,
fact,
issues of
which a new trial
were of
parties
them
such character as to entitle
to have
tried
tried.” Section
or not
were so
jury,
by a
whether
any person interested
provides that
code
1020 of the same
application
for distribution.
may
in the
resist
estate
1231 and 1020
sections
construing
predecessor
1668)
court held that
(Code
Proc.,
1714, 1665,
Civ.
§§
determining
the motion
whether
applied
to be
test
proceeding is whether
law
particular probate
will lie in a
*6
in
be framed
of fact
such
expressly authorizes an issue
party
probate
a
to a
been held that
proceeding.
a
It has
by jury when there is statu
proceeding
to a trial
is entitled
upon
fact
the
of issues of
tory authority for the formation
Waste, 159
23
(Carter v.
Cal.
question to be determined.
Baird,
;
617
173 Cal.
P.
;
P.
Estate
[160
1078]
[112
727]
;
P.
Nelson,
O’Brien
upon question the as to whether sections 228 and 229 of the apply property Probate Code to in a common-law property state one who was domiciled in that state. At the of death, time Mrs. Perkins’ these sections as fol- read : lows “If the decedent spouse leaves neither nor issue, and estate, any portion the or thereof was community property previously decedent and a spouse deceased . . . such property goes equal to shares the children of the deceased spouse and their right descendants of representation. ...” (§228.) “If the decedent leaves neither spouse issue, nor any portion the estate or thereof was previously spouse, of a deceased and came to decedent from spouse gift, descent, such bequest devise . . . such goes equal shares the children of the deceased spouse by right their representation. descendants of ” (§ 229.) . . . concededly Mrs. Perkins domiciled California consisting estate, at the date Her entirely of her of death.
569 subject personalty, consequently laws of succes right Since of inheritance sion of this state. right only by
an inherent or natural but one which exists statutory authority, entirely the law of succession is within Legislature. (Estate Phillips, of 203 the control Cal. of ; Estate, 106 179 20 P. In re Watts’ Cal. [263 1017] [175 Lyall, 681]; 615 Es 415]; McCaughey P. v. 152 P. Cal. [93 Porter, ; Bump, 152 274 P. Estate tate Cal. [92 643] of of 78]; 659, 129 86 P. Estate Am.St.Rep. Cal. 79 Stan [61 of ; 462, 126 112 45 L.R.A. ford, 259, Cal. P. 58 P. 788] [54 Loupe, Sharp v. Donnelly, ; 125 417 P. Estate Cal. 61] [58 of Estate, 117 ; Wilmerding’s 120 134, Cal. 89 P. re [52 586] 680 Cal.App.2d ; Gross, 281 41 Cal. P. Childs v. [49 181] Estate 424]; Cal.App.2d 594 Stewart, P.2d 30 [86 [107 of 1071].) designation proportions P.2d of heirs and they will subject legislative which shall receive are Estate, (Estate Wilmerding’s Stanford, supra; In re of right ancestor, the supra), and until the death of expectancy. of mere inheritance is not a vested one but a Clark, (Estate 522]; Estate Loyd, 170 85 P. Cal. [148 of of Warner, Cal.App. 6 Cal.App. ; 94 453 Estate P. [271 542] 361 191].) P. [92 together Sections 228 provide and 229 for the succession of all property predeceased in which spouse had some interest. scope Their community property, is not limited to have been construed providing upon death marriage, survivor of the intestate without issue, go family should or families spouse (Es spouses through whose efforts the estate was accumulated. Rattray, 702, 13 713 Cal.2d P.2d [91 tate 1042]; Putnam, 608, 219 ; Estate Cal. [28 27] McArthur, 439, 469, Estate 72 A.L.R. Cal. P. [292 1318]; Mercer, 506, ; Estate Cal. P. [271 1067] Hill, ; 179 Cal. P. Estate 710] By Brady, sections, 171 Cal. these Legislature said, court intended a lineal de has predeceased spouse scendant of the succeed to all should surviving spouse predeceased which spouse if there were no lineal descendants interest; owned *8 equally then be spouse, property of either the divided should spouses by respective of two whose between the families the however, had If, property the efforts it was accumulated. means spouse by other originally predeceased to the come 570 during
than his efforts the existence of the marriage, such marriage, before acquisition gift, devise, as or bequest marriage, then subsequent Legislature the intended property descend, upon such should the of death the survivor, entirely family to of predeceased the spouse. the (See supra.) cases cited way legislative in only purpose may which that given
be applying effect sections 228 229 and to all property subject probate proceedings to California, in re gardless foreign jurisdiction. of prior a Im status plicit in this of construction, course, reclassification, is the purposes of only, property acquired the succession of foreign jurisdiction the community with the accordance property Although law of in Estate California. this court Thornton, 1343], 1 1, Cal.2d P.2d 92 A.L.R. held [33 of that section 164 the inso of Civil was unconstitutional far it purported reclassify spouse a the of brought who it it a common-law state and later California, limited a reclassi expressly the decision change a during fication the of spouse. the Such lifetime rights the incidents and wife husband court, acquired by them, would either of said right, a deci prior constitute of a disturbance vested a deter concerning prevented sions the effect of statute hence mination laws and “part that it of our succession valid statute succession.”
Under 229 of sections the Probate Code, predeceased issue or spouse kindred statutory are surviving spouse, heirs .of rights their under those do vest (Estate until death of the latter. Watts, 179 Cal. ; Bixler, [175 415] P, 194 Cal. The property acquired during of this subjected outside state marital relation is that, to the laws succession California fact at time of surviving spouse, the death of the he she was borders; may domiciled within its therefore be reclassified Allshouse, under the law of the domicile. In Estate 887], that, Cal.2d this court held under section origin Code, may of the Probate of an estate be foreign jurisdiction into traced and the California classi- applied acquired. fication there qualified by requirement But the decision was that the foreign ownership substantially nature must be *9 if property acquired would have in same as that which Upon reasoning reconsideration of the this state. that obvious the limitation of section 229 to case, it seems that which, foreign jurisdiction, substantially in the had property, property identical incidents to the classifications a com munity property no and is state has reasonable foundation legislative expressed intent with the sec consistent tions 228 and of the As those statutes Probate Code. only, fully their if purpose affect carried out succession probate property upon court distributes the basis acquired Apply its classification it been had California. ing rule, unnecessary that to determine whether by Wallace his owned T. Perkins at the time of community death would have been his acquired respondent, if it had been California. The son, as his is entitled to all of the estate of Mrs. Perkins by descent, bequest her gift, which came to devise or from predeceased of her husband reclassified as either community. separate property his of the that question A further concerns the manner which acquired the property Mrs. Perkins which is to be distribu by probate shows, The record con ted court. without gainful tradiction, occupation she had no inde and no pendent repeated gifts Her income. husband made of se policies her. of his life curities to insurance were Proceeds meaning gift her 228 and 229 also a to within the sections (See Rattray, supra, disap Probate Code. Estate Miller, 23 proving Cal.App.2d 1117], Estate P.2d Lissner, Cal.App.2d group policy of these was a and that one- The fact that one by premiums paid employer were his does not half of category policy any different from others. place merely premiums employer payment of Such a compensation form of for the services another and additional of the husband. findings fully supports court’s the trial
This evidence Perkins, except the sum of of Mrs. the entire estate gift deceased previously her from her $4,313.16, came the property owned In view of the fact husband. ap- appraised at time of her death was Perkins at the Mrs. than one-third of probably less $14,000, proximately husband, and the court by gift from her received amount she legacies amount of the two the full her kindred allowed other persons, which came her from the division favor- able to them. judgment is affirmed. J.,
Shenk, Carter, J., Sehauer, J., concurred. TRAYNOR, J. —I dissent. The question at issue is not the wisdom of Probate Code sections and 229 or the power Legislature control the succession applicability but the of these to property by a husband and wife in a brought common-law state and *10 surviving to this state spouse who dies intestate here. Their applicability depends upon neither their wisdom nor range legislative power of upon but Legis- whether the lature power has exercised particular legislation. its this Yet the majority opinion gives no heed language to the of Probate Code 228 provisions or of the Civil defining community separate property, and or the decisions of this interpreting court those definitions. Its reasoning legislative give there is a purpose to family spouse through to the of the whose efforts accumulated, it was and that this purpose can be fulfilled only by applying sections 228 subject and 229 to all probate proceedings to irrespective previ- California of its foreign jurisdiction. ous character a reasoning This ad- mittedly reclassification, a purposes involves for the of suc- cession, property acquired by a and husband wife while jurisdiction. foreign majority opinion domiciled The points provisions calling to no statutory for such reclassi- attempts gap fication but fill the to declaration that implicit in its construction of such a reclassification is own legislative purpose. -of It thus construed scope has legislative lan- legislative beyond to extend purpose language implication guage read into an then and enlarged possible alone make the execution would purpose. legislative purpose as majority
Were the extensive opinion be, hardly construes it to its accomplishment would indirectly to the implication be left chance at. arrived Legislature’s significant particularly silence view activity past bringing community prop- within the property acquired by erty husbands and wives while laws Erees, (See beyond the state’s borders. Estate domiciled 573 ; Drishaus, 150 187 Cal. P. Estate 199 369 Cal. [201 112] 1 ; Thornton, Cal.2d 515] expressly A.L.R. refer Sections community property separate property, peculiar terms community property laws, provision make no for trans- lating property acquired into other these terms under laws. property acquired by gifts
If the Mrs. Perkins as from her beneficiary policies husband and as of his insurance life acquired not community it, she property when brought community property transformed into when she California, its succession is not controlled section separate property the Probate If it was not Code. him, Mrs. Perkins it from husband when section govern 229 of the Probate Code cannot its succession. words, other if her ownership under the laws absolute New York domiciled in was not modified when she became state, her sisters are entitled to to her estate succeed under of the Probate Code.
At the time of Mrs. Perkins’ death section read issue, follows: “If spouse leaves neither nor .decedent anji estate, any portion community prop- thereof was erty spouse previously of decedent and a . . deceased such . goes in equal of the deceased shares to the children if spouse none, community . then . . one-half such property goes parents of . the other the decedent. . and goes spouse....” half parents of the deceased Section *11 spouse 229 read follows: “If decedent leaves neither as issue, any portion separate and or nor the estate thereof was spouse, to the property previously of a deceased and came by gift, descent, bequest, or spouse decedent from such devise goes spouse to the the deceased property such children parents of the if none then to deceased . . . and spouse. ...” relate to and embody laws succession
These sections spouses. during of the existed the lives classifications that Prohate Ferrier, Jr., Rules Descent Under (See W.W. They not 229, 261.) 25 do de Code, 228 Cal.L.Rev. and §§ separate property purposes community property or fine operation into until succession; they do not come even determined under property been character of has prop governing the classification statutes appropriate They govern succession erty community separate. or “was community and what only property” of what “was separate property” during the of its lives owners. The meaning terms, scope and those therefore the sec- in tions, only can be found the definitions sections property Civil If not en- and Code. regarded having compassed by it be these sections cannot pre- been community property property of a separate ap- 229 can no spouse, deceased and have plication.
Sections 162 and 163 of the provide Civil Code that all property by spouse owned either before marriage or acquired gift, by bequest, afterwards descent, devise or together with rents, issues, profits thereof his separate or her property. 164 provides Section that all other property ac- quired marriage after either spouse community both is property.
These not sections could property transform the in ques- community property tion into it being while was acquired the husband New York. Nor was property con- community property verted into when Mrs. Perkins became domiciled in this provision state. The section 164 that personal acquired property spouses while the were domiciled community property elsewhere is when would not be the acquired of either property if while domiciled Thornton, this state was held unconstitutional in Estate of 1, 92 Cal.2d 1 A.L.R. This case also held 1343]. that section 164 not be could considered a statute of succes- community sion that property definition of did not apply, purposes succession, even for to property per- acquired sons domiciled in another state. In while that ease Mr. personal Mrs. Thornton came to California with property while domiciled Montana. Upon Thornton’s death his wife claimed one-half Mr. Code, providing under Probate section “upon either the death of husband or wife one-half of the community belongs surviving In spouse.” holding could Civil transform community property the court Mrs. property into denied one-half Thornton’s claim to under Probate Langdon ground Code, section 201. Justice dissented on the community section 201 term that Probate Code used and as as defined Civil Code section broad- present ened that definition constitutional. *12 with case Mr. Perkins never came to California Mrs. Perkins greater there is even reason than in Thorn- so that Estate of holding property brought ton for this state into community property. was not Since Civil Code section for extend, purposes does not of succession under Probate state, property acquired in another section be so under Pro- purposes cannot extended for succession outright repudiation bate Code section without Estate Thornton. majority Whatever the merits of the dissenting and opin-
ions highly on the controversial issues in of Thornton, Estate Legislature took account of the decision qualified by adding its effect 201.5 section to the pro- Probate Code viding: “Upon the death of either husband or one- wife half of personal all property, situated, wherever heretofore acquired or hereafter marriage by after either husband or wife, both, elsewhere, while domiciled which would not have been the property of either if acquired while state, domiciled in shall belong surviving spouse; to the subject other one-half the testamentary disposition decedent, absence goes thereof surviving spouse. ...” This section is based on theory that suc- property acquired by cession to a husband and wife before they were domiciled in subject this state should be governing rule to property acquired by spouses the succession applies only domiciled here. It surviving in the case of a spouse does not extend to such present cases one involving surviving other than spouse. heirs Legisla- apparently ready ture was not then provision devise a comparable to section 201.5 that apply would to such situa- tions.
Although in question estate had its in Mr. Per- source earnings community kins’s marital property. it was never community property Since it was not when and was community not converted into property when Perkins Mrs. here, gov- became domiciled Probate Code section cannot ern its succession. govern
Likewise section does not its succession. That bring does within purview, “separate property” term is but a differentiation from “community the term property” in section 228. It is well established that the two sections are interdependent must together. (Estate be construed Rattray, 13 Cal.2d 702 1042]; Simonton, Cal.
576
442].)
envisages “separate
229
Section
property” as that
by
other
earnings
than marital
and the fruits there
envisaged
of
by
(Estate
228.
section
Rattray, supra; Es
of
Bill,
710].)
tate
179
683
Cal.
P.
When the prop
[178
of
in
erty
question
acquired by
Mr. Perkins in New York
“separate
could no more
classified
be
as
property” than
“community
property” under the
of
laws
this state. As
a nonresident
never came to
who
California he was untouched
by its
owned,
laws. He never
and therefore
gave
never
community property in the sense of
section
or separate
property in
defining
the sense
section 229.
“separate
In
property of the husband”
section
Code,
of the Civil
in
contrast
section 164,
purport
does not
property
to include
acquired by an owner while
in
domiciled
another state. There
is therefore less reason to hold that it
property
includes such
in its definition
purposes
for
of succession under Probate
Code section 229 than there would
have been
hold in
Thornton, supra,
that
property
such
could be in
cluded in the definition in Civil
Code section
for pur
poses of succession under
Probate
section 201. Even
if
given
Civil Code section 163 could be
an extraterritorial
operation,
question
property
earnings
as marital
would
not
requirements
meet the
property set forth in
section.
earnings
To treat
they
such
if
sepa
were
property
rate
would do violence to the
scheme
succession
embodied
templates
Probate Code
which con
spouses
both
the event
die without lineal
descendants,
earnings
marital
are to be
equally
inherited
respective
spouses by
families of the two
whose ef
(Estate
it was
Bill,
forts
accumulated.
“Respondent, entitled virtue of sec- 229, supra, to distribution tion of the division of property under discussion. And as there is no here California statute provides succession which estate of a widow originated in her transfers to which held *14 previously her deceased husband common sole law owner- line, shall to the ship revert husband’s an estate derived brought from such source into California by widow, and the issue, here intestate who died and without her separate is having property, purposes application the laws of separate succession the status property same as the of one has married. follows who never It that portion the of de- cedent’s estate which comes within this classification is dis- tributable under section 225 the Probate Code.” only
Likewise in present case the with ownership which court is is widow, this concerned that of the single as a who brought person first within property California law after ownership her husband’s death. The property by predeceased spouse and then classification terminated be- property brought fore the to California. The ownership and classification of personal property before it was brought, to California the widow sole ownership of person unmarried and had thereafter in California the property same status as the of one who had never married. Respondent argues that under the law of York New rights husband’s in the property at the of acquisition time equivalent rights were a to of California husband with
respect property to California, and govern 229 should the succession of the property as it would however, separate property property, California. The would not be the separate property husband’s had he ac- quired it while domiciled in state, contrary this but on the community would be property represented because it mari- earnings. tal It a strange is interprets construction that “separate term property” in a California statute to include designed to Under property it was exclude. very kind of “separate property” terms theory the and
respondent’s apply property of Califor- property” would to “community as the wives California statutes contem- nia and husbands application proposed property in their to the plate, but property” would be “separate made non-residents term property regarded community would be include to in the residents. Confusion and inconsis- case of inevitably any attempt tency would attend to translate the rights in a nonresident wives husbands state in terms of classifications common-law community property state. majority having opinion read into Probate sec- legislative reclassify property tions intent to proceeds overrule Estate acquired outside the state govern ground Allshouse, supra, case, on the which would not intent. consistent with the attributed It has it gone far afield avoid the facts that California classifica- acquired by husbands and apply tions do not provisions while domiciled outside state and that wives juris- foreign property acquired in for the reclassification of not rules dictions do embodied include gone It has far as to formulate a statute of 229. so afield Legislature itself not undertake to succession that did Whatever when had occasion do so. formulate it pre- of succession court’s view the wisdom rules Legislature, timely to recall that scribed immutable, periodic the task revi- are of their Legislature. Cigaran, de properly (Estate sion falls *15 474, ; Nigro, 172 Cal. Cal. P. 833] judgment should be reversed. Gibson, J., J., C. Curtis, concurred.
Appellant’s petition rehearing March for a was denied for a Curtis, J., Traynor, J., 1943. C. voted Gibson, J., rehearing.