104 Cal. 208 | Cal. | 1894
This is an original proceeding by mandamus to compel settlement of a bill of exceptions.
Petitioners are some of the residuary legatees of William Walker ley, deceased, whose will was admitted to probate in Alameda county in 1887. In 1892 his executors filed their final account and a petition for distribution of the estate. In August of that year the final account was settled, but the matter of distribution was continued from time to time until November 27, 1893, at which date a decree of distribution was entered, which also embraced the settlement of several- accounts filed by the executors supplemental to their final account. On November 28th, the day following the entry of this decree, the petitioners appealed therefrom to this court, and in due time perfected their appeal. By stipulation of parties, their time to prepare a bill of exceptions to the decree was extended beyond the 16th of December, and on that day they served on all the other interested parties copies of a document entitled in the cause and bearing the following caption:
“BILL OE EXCEPTIONS.
“On appeal from the decree settling the (so-called) final account of the executors and distribution of the estate, made, signed, and filed in the above-entitled action, matter, and proceeding in said superior court,*210 on November 27, 1893, and which was appealed from to the supreme court on the twenty-eighth day of November, 1893, by the contestants, Mary S. Doughty and ten other nieces and nephews of William Walkerley, deceased, and beneficiaries under his last will.”
To this proposed bill of exceptions the attorney for the executors proposed amendments, but at the same time he took and reserved the objection that it was not entitled to settlement because it was a sham and a fraud,, purposely omitting nearly every thing that it ought to contain, and false in the matters set forth. The attorney for the other interested parties, without offering any amendments to the proposed bill, contented himself with giving notice of a motion to strike it out upon similar grounds, viz., that it was false and' insufficient and not proposed in good faith. Upon this motion and these objections the proposed bill, the amendments, and the notice of the petitioners that they refused to accept said amendments were submitted to the respondent, one of the judges of the superior court of Alameda county, who, on March 26, 1894, sustained the motion to strike out, and dismissed the application of the petitioners for a settlement of the bill. Whereupon they filed their petition here for a writ of mandate.
Upon the filing of this petition an alternative writ was directed to the respondent, the judge of said court, who, on the return day, showed cause by answer and demurrer, in which the executors and some of the legatees unnecessarily joined.
The demurrer to the petition is general and special, for want of facts and for uncertainty, and the principal point urged in support of these objections is that .it nowhere appears in the petition that the petitioners ever presented to the respondent a fair or proper draft of a bill such as the statute requires them to prepare. This objection is certainly well founded. The petition, though inordinately long, is- mainly composed of matters wholly irrelevant, and contains no allegation in form or substance that the draft of the bill proposed by
The petition is, as we have said, inordinately long, and the answer is correspondingly voluminous, made so by the careful denial of most of the immaterial allegations of the petition. It also has attached as exhibits copies of the proposed bill of exceptions of the amendments proposed by the executors, of the motion of cer-' tain legatees to strike out the proposed bill and of the order of the respondent sustaining said motion. In response to this answer the petitioners file another formidable document in the nature of a replication, closing with a prayer that the matter may be referred to a commissioner to take and report evidence as to the material issues, etc., and that upon the coming in of his report this motion be set down upon the calendar of the court for hearing and further argument, etc., etc.
Taking the admitted allegations of the petition and the allegations of the answer which support the petition, we think facts enough appear to justify us in holding that the refusal of the respondent to settle this bill of exceptions is not justified. The bill as prepared is certainly not a model, and we can well conceive that the task of settling it is one which would severely tax the patience of a busy officer, but we do not think it bears evidence of bad faith and purposed unfairness. Its faults appear, on the contrary, to be due to deficient knowledge of the true office and essential nature of a bill .of exceptions, which exhibits itself much more conspicuously in the useless and redundant matter incorporated in the draft than in the comparatively slight omissions of evidence that ought to have been set out.
The decree appealed from was a decree of distribution and settlement of accounts supplemental to the final account of the executors. Besides the recitals of fact contained in the decree proper, it referred to and was partly based upon certain “ findings of fact ” which were filed with the decree. The petitioners objected to a number of these findings upon the ground that they were not sustained by the evidence, but when we come to look at the findings so objected to we find that they were not in reality, except in two or three instances, findings of fact, but rather conclusions of fact from other facts specifically found, or conclusions of law. As to these objections no evidence was needed, or could be admitted to explain them. And as to the two or three findings strictly of fact, which were questioned,
. To be more specific upon this point, we will state that the will and codicil of William Walkerley, as admitted to probate in 1887, are found and recited in full in the findings and decree. It is then found by a number of successive findings that the testator “ intended/’ and meant” a variety of things, and it is these findings as to the intention and meaning of the testator which are the principal object of attack in the bill of exceptions as proposed. The respondent says in his answer- that the evidence upon which these findings are based was not set out in the proposed bill. But what evidence could there have been of what the testator meant and intended except the terms of the will and codicil? Of course, there may have been some questions as to identity of the property disposed of, or the number or identity of legatees, or other latent ambiguities in the will as to which extraneous evidence was admissible, and possibly there may have been something in the circumstances surrounding the testator at the time the will was made, of which evidence was admissible for the purpose of construction, but the findings of intention which the petitioners have attacked have no possible dependence upon extraneous evidence. They depend wholly upon the terms of the will and the recitals it contains, and the exceptions to them are in fact nothing but arguments founded upon the terms of the will.
In the careful examination of the proposed bill which we have made we find but three questions raised as to real findings of fact: 1. As to the character and value of the services of the attorney for certain legatees; 2. As to the character and value of the services of the attorney for the executors; 3. As to the extraordinary services of the executors.
As to these findings it is claimed by petitioners in
• The other specifications with a single exception are of errors of law in the conclusions of the court, and neither need nor admit of explanation by evidence. The exception referred to relates to the ruling of the court denying a continuance. The statement of this matter is said to be false. If so, an allowance of the proposed amendment, which is very brief, would have cured it. Upon the whole we think the bill should have been settled. The objection that it was out of time because the parties had only stipulated an extension of time to prepare a bill of exceptions and not a statement of the case is untenable. Equally untenable is the objection to the name or description which the petitioners gave to the bill. We have quoted its caption in the beginning of this opinion, and we think it is entirely sufficient to show what the paper was and to connect it with the notice of appeal.
Let a peremptory writ issue.