Sacramento Daily Union, Volume 95, Number 149, 20 July 1898 — SUPREME COURT DECISIONS. [ARTICLE]

SUPREME COURT DECISIONS.

SYLLABI. (Sac, No. 304—1n Bank—Filed July 11, # 1898.) In the matter of the estate of Anna Tyler, deceased. Will contest. Affirmed. General rules of evidence obtain in the proving of a will. If the attesting witnesses are alive and present in the county they must, in the event of a contest, be called; but there is no statutory declaration, and no principle of law. to the effect that a will executed in due form shall go for naught unless an attesting witness, after the lapse of many years, shall continue to recollect everything material that occurred at the time he subscribed his name to it. Where an attesting witness has no recollection as to certain matters connected with the making of the will, the case is, upon principle, in the same condition as where he is dead, insane or absent; and in such case proof of the handwriting of the testator and of the subscribing witnesses, or any of them, may be admitted as evidence of the execution and such evidence is sufficient in the absence of any countershowing to prove the execution. (Sac, No. ifl)7—Department Two—Filed July IS. 1898.) . James F..Banta. respondent; J. L. and L. G. Siller, appellants. Reversed. A party defendant in pleading may plead as many defenses a« he may have. If a pica or defense separately

pleaded in an answer contain several matters, these should not be repugnant or inconsistent in themselves. But the plea regarded as an entirety, if it be otherwise sufficient in form and substance, is not to be defeated or disregarded merely because it is inconsistent with some other plea or defense pleaded. And there is no distinction in this respect between pleadings verified and unverified. Held, therefore, that an instruction from the court, *«i defendant may plead as many separate defenses as he has, but a sworn answer must not deny a fact in one part which is averred to be true in another part," is reversible error. (Sac, No. 448—Department One—Filed July 14, 1898.) Amos Hart, administrator, etc., Piatt Ketchum. appellant. Recovery of money affirmed. It is essential to a gift causa mortis that the donor shall confer upon the donee, at the time of the gift, a present title and property in the thing given, and if the thing given is capable of corporeal delivery there must be an actual or symbolical delivery of It. or, if it is not so capable, the means of obtaining control and possession of the thing must be then given. Unless the property in the thing given vests in the donee it remains in the donor, and there is only a purpose or intention on his part to make a gift. Such purpose, or intention, is incapable of enforcement. The delivery must accompany the gift and must be made at the same time. It is the delivery by the donor, and not the possession by the donee, that makes the gift effective. If by the terms of the gift it is not to take effect until after the death of the donor, the disposal is testamentary, and not a gift. Such limitation is a condition precedent, by which the gift is prevented from becoming absolute in the lifetime of the donor R/id the thing given is therefore a portion of his estate at the time of his death.

(S. F., No. 546—1n Bank—Filed July 16, 1898.) Helena Seymour, respondent; Margaret McAvoy, et al., appellants. Action to sub-let interest of defendants to satisfaction of plaintiff's judgment. Reversed. The author of a trust to pay to or apply for the benefit of another the income of property, or a portion of such income, may lawfully provide that the interest of the beneficiary shall not be assignable or shall not be subject to the claims of his creditors. And such provision need not be expressed, but may be implied from the general intention of the donor, to be gathered from the terms of the trust, in the light of all the circumstances. Alienability is not an essential attribute of an equitable lifeestate in property; and there is nothing in the policy of the law prohibiting a donor from providing that his bounty shall be employed only by those to whom he intends to extend it, and that property devoted by him to a trust otherwise valid, shall not be divested from its appointed destination. The decree of distribution is conclusive of the validity of all of the provisions of the will. (L. A., No. 328—1n Bank—Filed July 16, 1898.) A. S. Moody, respondent; New-mark and Edwards, appellants J. S. Robinson, defendant. Reversed. Where two findings upon an essential fact are irreconcilable, the findings cannot support the judgment. (Crim., No. 416— Department One—Filed July 16, 1898.) People, respondent; Ludwig A. Strenber, appellant. Felony. Reversed. Held, that the instruction "It is not incumbent upon the defendant to prove his innocence, nor is it incumbent upon him to explain suspicious circumstances unless they shall tend In some degree to establish his guilt" does not contain a satisfactory statement of the law, since in no case except those where the burden of proof shifts to the defendant is it necessary, or even incumbent on the defendant to explain anything.

(L. A., Nos. 41G, 417—Department Two —Filed July 16, 1895.) C. V. Stansbury, respondent: J. O. White, et al., appellants. Street assessment. Reversed. The legislative department of the city has no power to delegate to any officer or committee of the corporation the power to determine the mode, manner or plan of an improvement. A contract which gives to the Superintendent of Streets the power to increase or diminish the cost of improvement, after the contract has been entered into, by requiring a greater or less amount of material for At* completion as he shall determine, renders the assessment invalid. See Bolton vs. Gilleran. 105 Cal. 244.